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4,593,090		Rudy Stanko v. Oglala Sioux Tribe	2019-02-22	17-3176	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3176\n ___________________________\n\n Rudy Butch Stanko\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Oglala Sioux Tribe, et al.\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Rapid City\n ____________\n\n Submitted: October 17, 2018\n Filed: February 22, 2019\n ____________\n\nBefore SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n Rudy Stanko, a non-Indian, filed this common law and 42 U.S.C. § 1983 action\nagainst the Oglala Sioux Tribe and various tribal officers, seeking damages for their\nviolation of his constitutional and civil rights. The pro se complaint alleged that,\nwhile traveling on a federally-maintained highway on the Pine Ridge Reservation in\nSouth Dakota, tribal officers arrested and detained him on an illegally issued warrant;\ntook him to the Kyle Police Department jail instead of the Oglala Sioux Tribal Court;\n\nassaulted, battered, and placed him in isolation because he was a non-Indian; and\nstole $700 from his wallet. Stanko appeals the district court1 order granting\ndefendants’ motion to dismiss all claims. We affirm the dismissal with prejudice of\nclaims against the Tribe and the individual defendants acting in their official\ncapacities because those claims are barred by the Tribe’s sovereign immunity. We\naffirm the dismissal without prejudice of claims against defendants acting in their\nindividual capacities on a different ground, failure to exhaust tribal court remedies.\n\n I. Claims Barred by Tribal Sovereign Immunity.\n\n “Indian tribes have long been recognized as possessing the common-law\nimmunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo\nv. Martinez, 436 U.S. 49, 58 (1978); see Alltel Commc’ns, LLC v. DeJordy, 675 F.3d\n1100, 1102 (8th Cir. 2012). The Oglala Sioux are a federally recognized tribe. See\nIndian Entities Recognized and Eligible to Receive Services from the United States\nBureau of Indian Affairs, 83 Fed. Reg. 34,863 (July 23, 2018). Thus, as a matter of\nfederal law, the Tribe is subject to suit only if Congress has authorized the suit or the\ntribe has waived its immunity. Amerind Risk Mgmt. Corp. v. Malaterre, 633 F.3d\n680, 685 (8th Cir. 2011).\n\n The district court properly rejected Stanko’s contention that Congress expressly\nauthorized § 1983 suits against Indian tribes. See Will v. Mich. Dept. of State Police,\n491 U.S. 58, 67 (1989) (“in enacting § 1983, Congress did not intend to override\nwell-established immunities or defenses under the common law”); cf. Inyo County\nv. Paiute-Shoshone Indians, 538 U.S. 701, 709 (2003). Stanko made no showing that\nthe Tribe has waived its sovereign immunity; indeed, the Tribe specifically reserved\nits right to assert sovereign immunity absent consent in 2001 and reaffirmed tribal\n\n\n 1\n The Honorable Jeffrey L. Viken, Chief Judge of the United States District\nCourt for the District of South Dakota.\n\n -2-\n\nimmunity in 2015. OST Ord. No. 01-22; OST Ord. No. 15-16. On appeal, quoting\nan article by an eminent law professor, Stanko argues that “sovereign immunity is an\nanachronistic relic and the entire doctrine should be eliminated from American law.”\nErwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201\n(2001). Whatever the merits of this view, “it is too late in the day, and certainly\nbeyond the competence of this court, to take issue with a doctrine so well-\nestablished.” Alltel, 675 F.3d at 1106 (citation omitted).\n\n The district court properly dismissed Stanko’s claims against individual tribal\nofficers acting in their official capacities as also barred by the Tribe’s sovereign\nimmunity. “A suit against a governmental officer in his official capacity is the same\nas a suit against the entity of which the officer is an agent.” McMillian v. Monroe\nCounty, 520 U.S. 781, 785 n.2 (1997) (cleaned up). “There is no reason to depart\nfrom these general rules in the context of tribal sovereign immunity.” Lewis v.\nClarke, 137 S. Ct. 1285, 1292 (2017).\n\n In his pro se Response to defendants’ motion to dismiss, Stanko argued his\ncomplaint states a claim against defendants for violation of the Indian Civil Rights\nAct (“ICRA”), 25 U.S.C. § 1302. The district court did not address this contention;\nwe conclude it is without merit. In § 1302, Congress exercised its “plenary authority\nto limit, modify or eliminate the powers of local self-government which the tribes\notherwise possess . . . . by imposing certain restrictions upon tribal governments\nsimilar, but not identical, to those contained in the Bill of Rights and the Fourteenth\nAmendment.” Santa Clara, 436 U.S. at 56-57. However, because “Congress also\nintended to promote the well-established federal policy of furthering Indian self-\ngovernment,” the Court held there is no implied private right of action against tribal\nofficers in federal court to remedy alleged ICRA violations, other than “the habeas\ncorpus provisions of [25 U.S.C.] § 1303.” Id. at 62, 70 (quotation omitted). Thus,\nStanko’s complaint did not state a claim under ICRA against any defendant.\n\n\n\n -3-\n\n II. Individual Capacity Claims.\n\n Stanko’s claims against tribal officers acting in their individual capacities are\nnot barred by the Tribe’s sovereign immunity. See Lewis, 137 S. Ct. at 1292-93. The\ndistrict court dismissed those claims without prejudice because Stanko’s “allegations\nfail to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).\nWe review this issue de novo. Miller v. Redwood Toxicology Lab., Inc., 688 F.3d\n928, 936 (8th Cir. 2012) (standard of review).\n\n Stanko’s pro se complaint alleged that the individual defendants violated his\nFourth Amendment, Eighth Amendment, and Fourteenth Amendment rights. It\nalleged the district court had subject matter and personal jurisdiction under 28 U.S.C.\n§§ 1331 and 1343 (federal question and federal civil rights jurisdiction). Diversity\nof citizenship was not alleged. The district court ruled that these allegations failed\nto state a claim because “provisions of the Bill of Rights, as well as . . . the Fourteenth\nAmendment” do not “operate upon the powers of local self-government enjoyed by\nthe tribes,” quoting Santa Clara, 436 U.S. at 56, which in turn quoted Talton v.\nMayes, 163 U.S. 376, 384 (1896). We disagree. These cases did not establish that\ntribal officers cannot be sued individually for violating the constitutional rights of\nnon-Indians while on tribal lands. Non-Indian United States citizens do not shed their\nconstitutional rights at an Indian reservation’s border. Thus, the inquiry must focus\non whether Stanko stated a plausible claim for violation of those rights that survives\ndefendants’ motion to dismiss these claims. “A non-frivolous claim of a [federal]\nright or remedy . . . is sufficient to invoke federal question jurisdiction.” Weeks\nConstr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 672 (8th Cir. 1986).\n\n Stanko’s pro se complaint described his claims as “a common law complaint\nand a complaint pursuant to 42 USC § 1983.” The district court ruled (alternatively)\nthat the complaint failed to state a § 1983 claim because it did not allege “that the\nIndividual Tribal Defendants were acting under color of state law.” See West v.\n\n -4-\n\nAtkins, 487 U.S. 42, 49 (1988) (“acting under color of state law requires that the\ndefendant in a § 1983 action have exercised power possessed by virtue of state law\nand made possible only because the wrongdoer is clothed with the authority of state\nlaw”) (emphasis added, quotation omitted). We agree with the court’s conclusion, but\nthe issue requires further analysis.\n\n Stanko alleged that he was unconstitutionally arrested and detained while\ndriving on “US/BIA Highway 27.” For the most part, this alleges tribal officers\nacting under color of tribal law because “tribal law enforcement authorities possess\ntraditional and undisputed power to exclude persons whom they deem to be\nundesirable from tribal lands and therefore have the power to restrain [non-Indians]\nwho disturb public order on the reservation, and if necessary to eject them.” United\nStates v. Terry, 400 F.3d 575, 579 (8th Cir. 2005) (quotation omitted). “Where\njurisdiction to try and punish an offender rests outside the tribe, tribal officers may\nexercise their power to detain the offender and transport him to the proper [state or\nfederal] authorities.” Id. (citation omitted). Stanko’s complaint, liberally construed,\nalleged a violation of this limited authority. Cf. Bressi v. Ford, 575 F.3d 891, 895-98\n(9th Cir. 2009) (non-Indian stated a § 1983 claim against tribal officers operating an\nunconstitutional roadblock on a state highway lying within the reservation, because\ninquiry beyond determining whether the stopped motorist was a non-Indian was “not\nauthorized on purely tribal authority”). However, Stanko did not allege that the\nindividual defendants were acting under color of state law, as § 1983 requires. He\nalleged that US/BIA Highway 27 is maintained by the Federal Government, not the\nState of South Dakota. Thus, his § 1983 claim was properly dismissed.\n\n In his Response to the motion to dismiss, going beyond his § 1983 claims,\nStanko also argued that “the substantiality doctrine requires that federal district court\nentertain a complaint seeking recovery under the Constitution or laws of the United\nStates,” citing Bell v. Hood, 327 U.S. 678, 681-82 (1946). The district court did not\naddress this issue. Stanko’s counseled brief on appeal pursues the issue, noting that\n\n -5-\n\nthe complaint alleged it was based on “common law” as well as § 1983. On appeal,\nStanko relies on Bivens v. Six Unknown Named Agents, where the Supreme Court,\nciting Bell v. Hood, held that “violation of [the Fourth Amendment] by a federal\nagent acting under color of his authority gives rise to a cause of action for damages\nconsequent upon his unconstitutional conduct.” 403 U.S. 388, 389 (1971). Federal\ncourts have jurisdiction to remedy this “federally protected interest” under 28 U.S.C.\n§ 1331(a); more explicit statutory authorization is not required. Id. at 400-06 (Harlan,\nJ., concurring).\n\n In a brief response to this contention, defendants argue that Bivens “only\napplies to federal officers acting under color of federal law” and the individual\ndefendants “are officers of the Tribe, and acted under color of tribal law, not federal\nlaw.” True, but the question is whether this is enough to sustain dismissal of the\nclaim for failure to state a claim. Broadly stated, the question is whether the\n“substantiality doctrine” reflected in Bivens should be extended to permit a non-\nIndian to bring a damage action in federal court for violation of his constitutional\nrights by tribal officers acting under color of tribal law, when non-Indian citizens\nhave a right to bring that action against officials acting elsewhere under color of state\nor federal law. To be sure, the Supreme Court “has made clear that expanding the\nBivens remedy is now a disfavored judicial activity,” Ziglar v. Abbasi, 137 S. Ct.\n1843, 1857 (2017). However, determining whether there are “special factors\ncounselling hesitation” to extend Bivens is a complex inquiry. Id. at 1857-58. Given\nthe recognized limitations on tribal sovereign power over non-Indians on reservation\nland, this is not a frivolous claim. See Montana v. United States, 450 U.S. 544, 565-\n66 (1981).\n\n We conclude we need not remand to the district court to address this issue\nbecause Stanko’s individual-capacity claims were properly dismissed without\nprejudice for his failure to exhaust an available tribal court remedy. “Tribal authority\nover the activities of non-Indians on reservation lands is an important part of tribal\n\n -6-\n\nsovereignty. Civil jurisdiction over such activities presumptively lies in the tribal\ncourts unless affirmatively limited by a specific treaty provision or federal statute.”\nIowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987) (citations omitted). Article V\nof the Constitution of the Oglala Sioux Tribe created an independent tribal judiciary\nwith jurisdiction over “cases, in law and equity, arising under the . . . Constitution\n[and] the laws of the Oglala Sioux Tribe.” Art. V, Section 2. This jurisdiction would\nobviously include a civil damage action by Stanko alleging that tribal officers acting\nin their individual capacities under color of tribal law violated his civil rights on\nreservation land.\n\n When a non-Indian challenges the exercise of tribal court jurisdiction, “the\nfederal policy supporting tribal self-government directs a federal court to stay its hand\nin order to give the tribal court ‘a full opportunity to determine its own jurisdiction.’”\nIowa Mut., 480 U.S. at 16, quoting Nat’l Farmers Union Ins. Co. v. Crow Tribe of\nIndians, 471 U.S. 845, 857 (1985). “Exhaustion is required as a matter of comity, not\nas a jurisdictional prerequisite. In this respect, the rule is analogous to principles of\nabstention . . . .” Iowa Mut., 480 U.S. at 16 n.8. Tribal court jurisdiction is not at\nissue here. “Indian tribes retain inherent sovereign power . . . to exercise civil\nauthority over the conduct of non-Indians . . . within its reservation when that conduct\nthreatens or has some direct effect on the political integrity, the economic security,\nor the health or welfare of the tribe.” Montana, 450 U.S. at 565-66; see Strate v. A-1\nContractors, 520 U.S. 438, 456-59 (1997). Whether tribal officers violated the civil\nrights of a non-Indian traveling on the reservation unquestionably has a direct effect\non the political integrity and welfare of the Tribe.\n\n In this case, the federal court has jurisdiction but whether Stanko has a federal\ncause of action is highly questionable. Though there is no case pending in tribal\ncourt, “the reasons for exhaustion cited in National Farmers Union -- the policy of\nsupporting tribal self-government, the advantages of allowing a full record to be\ndeveloped in tribal court, and the benefit of receiving the tribal court’s expertise on\n\n -7-\n\nthese issues of tribal sovereignty -- apply whether or not the dispute is already\npending in tribal court.” Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d\n1294, 1303 (8th Cir. 1994) (Loken, J., concurring). Moreover, there is an important\nadditional reason to exhaust tribal court remedies in this case. As we have explained,\nStanko has no damage claim under ICRA in federal court. However, “[t]ribal forums\nare available to vindicate rights created by the ICRA, and § 1302 has the substantial\nand intended effect of changing the law which these forums are obliged to apply.”\nSanta Clara, 436 U.S. at 65. Thus, tribal court resolution of a tribal law claim under\nICRA might well moot or otherwise affect Stanko’s assertion of a direct federal claim\nfor violation of his federal constitutional rights. Though this antecedent issue is a\nquestion of tribal law rather than state law, the circumstances warrant application of\nwhat is called Pullman abstention -- “federal courts should abstain from decision\nwhen difficult and unsettled questions of state law must be resolved before a\nsubstantial federal constitutional question can be decided.” Hawaii Hous. Auth. v.\nMidkiff, 467 U.S. 229, 236 (1984).2\n\n The judgment of the district court is affirmed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370343/", "author_raw": "LOKEN, Circuit Judge."}, {"author": "GRUENDER, Circuit Judge, concurring", "type": "concurrence", "text": "GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.\n\n I concur in the court’s judgment and join part I of the court’s opinion. I write\nseparately because I would follow the Supreme Court’s lead, refuse to extend Bivens,\n\n\n 2\n This is not a case like Dry Creek Lodge, Inc. v. Arapahoe & Shosone Tribes,\n623 F.2d 682, 685 (10th Cir. 1980), where non-Indian litigants asserting violation of\ntheir constitutional rights had “no remedy within the tribal machinery.” Where\nremedies are available in tribal court for tribal-related activities on reservation land,\n“the doctrine of exhaustion of tribal remedies is analogous to dismissals under the\ndoctrine of abstention.” Krempel v. Prairie Island Indian Cmty., 125 F.3d 621, 623\n(8th Cir. 1997).\n\n\n -8-\n\nand leave it to Congress to create any new cause of action. See Ziglar v. Abbasi, 137\nS. Ct. 1843, 1857 (2017). Thus, Stanko lacks claims under § 1983 and Bivens, and\nthe court need not discuss his failure to exhaust tribal court remedies. Indeed, the\ncourt’s statement that the second Montana exception “unquestionably” applies, ante\nat 7, risks undermining Supreme Court precedent limiting its scope, see, e.g., Plains\nComm. Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330 (2008); Strate v.\nA-1 Contractors, 520 U.S. 438, 456-59 (1997). Accordingly, I would refrain from\naddressing the complicated issues surrounding tribal court jurisdiction, which are not\nnecessary to resolve the case.\n ______________________________\n\n\n\n\n -9-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370343/", "author_raw": "GRUENDER, Circuit Judge, concurring"}]}	SMITH	LOKEN	GRUENDER	1	{"SMITH": ", Chief", "LOKEN": ", Circuit", "GRUENDER": ", Circuit"}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593090/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,092		Jonathan Zazueta v. Williams P. Barr	2019-02-22	18-1074	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1074\n ___________________________\n\n Jonathan Jaciel Zazueta\n\n lllllllllllllllllllllPetitioner\n\n v.\n\n William P. Barr, Attorney General of the United States\n\n lllllllllllllllllllllRespondent\n ____________\n\n Petition for Review of an Order of the\n Board of Immigration Appeals\n ____________\n\n Submitted: January 15, 2019\n Filed: February 22, 2019\n ____________\n\nBefore GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Jonathan Jaciel Zazueta, a citizen of Mexico, petitions for review of an order\nof the Board of Immigration Appeals (BIA) upholding the decision of an immigration\njudge (IJ) finding him removable under the Immigration and Nationality Act (INA),\n8 U.S.C. §§ 1101-1537. Having jurisdiction pursuant to 8 U.S.C. § 1252, we deny\nthe petition.\n\f Zazueta became a lawful permanent resident of the United States in August\n2004. In January 2009, he pled guilty in Iowa state court to possession with intent\nto deliver a controlled substance (crack cocaine) in violation of Iowa Code\n§§ 124.401(1)(c)(3), 124.206(2)(d), and 703.1. The court deferred judgment and\nplaced Zazueta on 4 years probation under Iowa Code §§ 901.5 and 907.3. Months\nlater, an Iowa state court jury found Zazueta guilty of a second offense, second-\ndegree robbery, in violation of Iowa Code § 711.3. Because the robbery conviction\nconstituted a violation of Zazueta’s probation from his controlled-substance deferred\njudgment, the state court revoked the deferred judgment and probation and sentenced\nhim to a term not to exceed ten years for that crime.\n\n The robbery conviction was vacated in 2016 due to ineffective assistance of\ncounsel and dismissed in 2017. Zazueta then moved to vacate his controlled-\nsubstance conviction and reinstate the deferred judgment. While his motion was\npending, the Department of Homeland Security initiated removal proceedings against\nZazueta. The state court judge reinstated his deferred judgment on the controlled-\nsubstance conviction, vacated and set aside the probation revocation and conviction,\nallowed the withdrawal of his guilty plea, and dismissed the case. In doing so, the\ncourt emphasized that Zazueta had been “rehabilitated” such that “[c]ontinuing\nprobation would serve no rehabilitative purpose.” Admin. R. 3, ECF No. 4622584.\n\n Zazueta then moved to terminate his removal proceedings before the IJ,\narguing he no longer had a “conviction” for immigration purposes. The IJ denied his\nmotion after determining the withdrawal of his guilty plea “was merely a function of\nhis completion of the deferred judgment[.]” Admin. R. 69. Thus, Zazueta still had\na requisite “conviction” and was removable under the INA as an alien convicted of\nan aggravated felony and as an alien convicted of an offense related to a controlled\nsubstance. 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(B)(i). The IJ ordered Zazueta\nremoved to Mexico.\n\n\n\n -2-\n\f Zazueta appealed to the BIA. The BIA dismissed the appeal, agreeing with the\nIJ that Zazueta’s 2009 Iowa deferred judgment constituted a “conviction” for\nimmigration purposes because the judgment was not deferred until after Zazueta pled\nguilty to possession of crack cocaine with intent to deliver. The BIA further found\nthat the deferred judgment was revoked due to Zazueta’s robbery conviction and then\nreinstated after the robbery conviction was set aside because Zazueta “had already\nserved [eight] years in prison, he testified that he had ‘rehabilitated,’ and the court\nconcluded that ‘[c]ontinuing probation would serve no rehabilitative purpose.’”\nAdmin. R. 5 (second alteration in original). Because the drug conviction was vacated\nfor rehabilitative purposes, it remained a “conviction” for immigration purposes.\nAccordingly, the BIA affirmed the IJ’s decision.\n\n Because Zazueta does not dispute that a deferred judgment may “constitute[]\na ‘conviction’ for immigration purposes,” Pet’r’s Reply Br. 8, he argues on appeal\nthat the withdrawal of his guilty plea and vacatur of the deferred judgment have\nremoved any “conviction” under the applicable immigration statutes.1 We review\nsuch legal determinations by the BIA “de novo, according substantial deference to the\nBIA’s interpretation of the statutes and regulations it administers.” Ramirez-Barajas\nv. Sessions, 877 F.3d 808, 810 (8th Cir. 2017), cert. denied, 135 S. Ct. 584 (2018) .\n“Though we ordinarily review only the BIA’s decision, we also review the IJ’s\ndecision as part of the final agency action if the BIA adopted the findings or the\n\n\n 1\n Zazueta also argued that the BIA erred by not considering whether his drug\noffense constituted a removable offense. However, in his Reply Brief, Zazueta\nconceded that this court lacks jurisdiction to hear that claim because he did not raise\nit before the BIA. Reply Br. at 10. Therefore, we need not address the issue. See\nSultani v. Gonzales, 455 F.3d 878, 884 (8th Cir. 2006) (“Failure to raise an issue\nbefore the agency constitutes a failure to exhaust administrative remedies and\ndeprives this court of jurisdiction to hear the matter.”); United States v.\nHammerschmidt, 881 F.3d 633, 640 (8th Cir. 2018) (declining to discuss an issue\nconceded in a reply brief).\n\n -3-\n\freasoning of the IJ.” Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (internal\nquotation marks omitted).\n\n For immigration purposes, a “conviction” is broadly defined as “a formal\njudgment of guilt of the alien entered by a court or, if adjudication of guilt has been\nwithheld, where . . . a judge or jury has found the alien guilty or the alien has entered\na plea of guilty or nolo contendere or has admitted sufficient facts to warrant a\nfinding of guilt, and . . . the judge has ordered some form of punishment, penalty, or\nrestraint on the alien’s liberty.” 8 U.S.C. § 1101(a)(48)(A). “[E]ven in cases where\nadjudication is deferred the original finding or confession of guilt is sufficient to\nestablish a conviction for purposes of the immigration laws.” Mendoza-Saenz v.\nSessions, 861 F.3d 720, 723 (8th Cir. 2017) (quoting Herrera-Inirio v. INS, 208 F.3d\n299, 305-06 (1st Cir. 2000)); see also In re Marroquin-Garcia, 23 I&N Dec. 705, 715\n(BIA 1997) (noting “conviction” envelops instances where a defendant pleads guilty\nand a “judge has withheld a formal adjudication of guilt but has nevertheless imposed\npenalties or restraints upon the defendant’s liberty” (internal quotation marks\nomitted)). “If a court vacates an alien’s criminal conviction for a reason unrelated to\nthe merits of the case—such as to avoid immigration consequences or for\nrehabilitative reasons—rather than to correct a procedural or substantive defect, the\nconviction will still stand for immigration purposes despite its vacatur.” Andrade-\nZamora v. Lynch, 814 F.3d 945, 948 (8th Cir. 2016).\n\n Here, Zazueta’s reinstated deferred judgment qualifies as an immigration\n“conviction” under 8 U.S.C. 1101(a)(48)(A) because Zazueta “entered a plea of\nguilty” and, in response, the IJ ordered a “restraint on [his] liberty”: deferred\njudgment and probation. Furthermore, the reinstatement of the deferred judgment\nwas not intended “to correct a procedural or substantive defect” in the underlying\noffense. Andrade-Zamora, 814 F.3d at 948. The state court’s language makes clear\nthat its vacatur was grounded in “rehabilitative reasons,” see id., repeatedly\n\n\n\n -4-\n\femphasizing rehabilitation without noting any infirmity in the controlled-substance\ncharge:\n\n The court cannot ignore the applicant’s testimony that he has indeed\n learned that crime does not pay. The court cannot ignore the fact that\n the applicant has a committed family and children that would benefit\n from his involvement. It is only equitable that the deferred judgment be\n reinstated. It is probable that the defendant has been rehabilitated. The\n purpose for probation, i.e. rehabilitation, has likely been achieved.\n Continuing probation would serve no rehabilitative purpose.\n\nAdmin. R. 192.\n\n It is not dispositive that Zazueta brought his claim for withdrawal of his guilty\nplea under Iowa Code chapter 822, which he alleges requires legal error. The\nlanguage of chapter 822 is broader than Zazueta contends, allowing claims involving\n“evidence of material facts, not previously presented and heard, that requires vacation\nof the conviction or sentence in the interest of justice.” Iowa Code § 822.2(1)(d).\nFurthermore, the state court concluded its order allowing withdrawal of his guilty\nplea by citing another statute, Iowa Code § 907.3(1). Admin. R. 193. Zazueta does\nnot dispute that a deferred judgment under § 907.3(1) “constitutes a ‘conviction’ for\nimmigration purposes[.]” Pet’r’s Reply Br. 8. Therefore, the BIA did not err in\nconcluding that Zazueta had a “conviction” for removal purposes.\n\n For the foregoing reasons, we deny the petition.\n ______________________________\n\n\n\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370345/", "author_raw": "SHEPHERD, Circuit Judge."}]}	GRUENDER	WOLLMAN	SHEPHERD	1	{"GRUENDER": ", Circuit", "WOLLMAN": ", Circuit", "SHEPHERD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593092/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,897	Rudy Butch STANKO v. OGLALA SIOUX TRIBE	Stanko v. Oglala Sioux Tribe	2019-02-22	No. 17-3176	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Loken, Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415327/", "author_raw": ""}]}	GRUENDER	LOKEN	SMITH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443897/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,898	UNITED STATES of America v. Michael JOHNSON	United States v. Johnson	2019-02-22	No. 17-2572	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Beam, Colloton, Grasz", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415328/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415329/", "author_raw": ""}]}	BEAM	COLLOTON	GRASZ	1	{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443898/	Published	0	1	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,899	UNITED STATES of America v. Anthony Jovon BROWN, also known as Anthony Brown, - United States of America v. Anthony Jovon Brown, also known as Anthony Brown	United States v. Brown	2019-02-22	No. 18-1426; No. 18-1427	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Shepherd, Wollman", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415330/", "author_raw": ""}]}	GRUENDER	SHEPHERD	WOLLMAN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443899/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,900	Jonathan Jaciel ZAZUETA v. William P. BARR, Attorney General of the United States	Zazueta v. Barr	2019-02-22	No. 18-1074	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Gruender, Shepherd, Wollman", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415331/", "author_raw": ""}]}	GRUENDER	SHEPHERD	WOLLMAN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443900/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,464	Paul VOSS, Plaintiff-Appellant v. HOUSING AUTHORITY OF THE CITY OF MAGNOLIA, ARKANSAS; And Richard Wyse, Individually and in His Official Capacity as Executive Director of Housing Authority of the City of Magnolia, Arkansas, Defendants-Appellees	Paul Voss v. Housing Authority, etc.	2019-02-25	17-1650	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Gruender, Grasz", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1650\n ___________________________\n\n Paul Voss\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Housing Authority of the City of Magnolia, Arkansas; and Richard Wyse,\n Individually and in his Official Capacity as Executive Director of Housing\n Authority of the City of Magnolia, Arkansas\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Western District of Arkansas - El Dorado Division\n ____________\n\n Submitted: September 27, 2018\n Filed: February 25, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n Appellant Paul Voss resigned from his position as maintenance supervisor at\nthe Housing Authority of the City of Magnolia, Arkansas (“Housing Authority”) and\nsoon after filed a lawsuit against the Housing Authority and his direct supervisor,\nRichard Wyse, asserting various discrimination, retaliation, and constitutional claims.\n\fVoss appeals the district court’s1 order granting summary judgment in favor of the\nHousing Authority and Wyse. We affirm.\n\n I. Background\n\n Voss worked at the Housing Authority for approximately fourteen years before\nresigning his position in May 2014. When he resigned, Voss was a maintenance\nsupervisor and was responsible for the technical supervision of maintenance activities\nfor low-rent housing developments.\n\n In February 2014, based on a recommendation from an Arkansas state funding\nagency, the Housing Authority directed drug testing of its employees. The initial\nscreening results indicated Voss tested positive for “opiates/morphine.” In March,\nWyse met with Voss regarding the results of the drug test. Wyse told Voss he was\nsuspended from employment without pay after Voss refused to provide information\nrequested by Wyse regarding his use of an opiate.\n\n The day after meeting, Voss provided Wyse a copy of a prescription for\nhydrocodone. Wyse asked Voss via email to provide a letter from his healthcare\nprofessional acknowledging the hydrocodone prescription and explaining how and\nwhen Voss took the prescription, as well as whether any side effects of the prescribed\nmedication could hinder Voss’s ability to perform his work duties. Wyse also asked\nVoss to provide a complete list of all prescription medications he was taking so Wyse\ncould confirm the hydrocodone was what caused the positive test, or alternatively a\nclearance letter from Voss’s healthcare professionals addressing the issue. Wyse\nsoon sent a follow-up letter asking Voss again to have his healthcare providers write\na letter of acknowledgment of the prescribed hydrocodone, “describ[ing] how and\n\n\n 1\n The Honorable Susan O. Hickey, United States District Judge for the Western\nDistrict of Arkansas.\n\n -2-\n\fwhen to take this said prescription, along with any side effects that could hinder your\nability to perform your duties to oversee the maintenance of the Housing Authority.”\nThere is no record of Voss responding to these two communications.\n\n Throughout April and part of May 2014, the Housing Authority communicated\nwith Voss on several occasions through its attorneys. During these communications,\nthe Housing Authority told Voss that it had reinstated Voss’s pay retroactively2 and\nmade sure his health insurance did not lapse during his suspension. By May, the\nHousing Authority also dropped its demand that Voss provide more information from\nhis healthcare providers and Voss agreed to return to work.\n\n On May 14, Voss ultimately returned to work. During a meeting with Wyse\nafter his return, Voss stated that he was still taking the hydrocodone. Voss also told\nWyse of certain medical conditions he had, including post-traumatic stress disorder,\nbut stated these conditions would not affect his ability to do his job. Wyse informed\nVoss that he could not operate the Housing Authority’s vehicles and equipment until\nVoss provided information from his doctor describing how and when to take the\nprescription, along with any side effects that could hinder Voss’s ability to perform\nhis duties. Wyse also informed Voss that, because of funding issues, Voss would\nnow need pre-approval from Wyse before placing any orders. Wyse believed there\nwere plenty of other general office duties that Voss could perform as part of his job.\n\n On Monday, May 19, Voss submitted a resignation letter. In the letter, Voss\nstated he “refuse[d] to work any longer in the retaliatory environment that has existed\nbetween me and most of the rest of the [Housing Authority] staff, especially [Wyse],\nsince the drug test was done in February.”\n\n\n\n 2\n The Housing Authority increased Voss’s salary effective March 16, 2014. It\nis unclear when this salary increase was communicated to Voss.\n\n -3-\n\f In January 2015, after filing a discrimination charge with the U.S. Equal\nEmployment Opportunity Commission (“EEOC”) and obtaining a right-to-sue letter,3\nVoss filed a lawsuit against the Housing Authority and Wyse, both individually and\nin his official capacity as Executive Director. Voss alleged numerous claims,\nincluding violations of the Americans with Disabilities Act (the “ADA”) and Title\nVII of the Civil Rights Act of 1964 (“Title VII”), all of which were dismissed by the\ndistrict court except for Voss’s “ADA claim against the Housing Authority; all of\n[Voss’s] procedural due process claims based on alleged deprivation of a\nconstitutionally protected property interest, and [Voss’s] Title VII Retaliation claim\nagainst the Housing Authority.”\n\n Following discovery, the Housing Authority and Wyse filed a motion for\nsummary judgment on the remaining claims. The district court granted them\nsummary judgment and dismissed the case with prejudice. The district court held\nsome of Voss’s claims were not properly exhausted and others failed as a matter of\nlaw on the merits. Voss filed a motion under Fed. R. Civ. P. 59(e), asking the district\ncourt to reconsider its summary judgment order and generally arguing the district\ncourt misapplied the legal standard. The district court denied Voss’s motion. Voss\nnow appeals.\n\n II. Analysis\n\n On appeal, Voss challenges the district court’s summary judgment order and\ndenial of his motion to alter or amend the judgment. We review the district court’s\n\n\n 3\n Roughly a week before returning to work, Voss had submitted a charge of\ndiscrimination to the EEOC, alleging the Housing Authority discriminated against\nhim based on his disability. The same date as his resignation, Voss submitted an\namended charge of discrimination to the EEOC, alleging both discrimination based\non disability and retaliation. On September 30, 2014, the EEOC issued Voss a right-\nto-sue letter.\n\n -4-\n\fgrant of summary judgment de novo, viewing all evidence and reasonable inferences\nin the light most favorable to Voss. See Torgerson v. City of Rochester, 643 F.3d\n1031, 1042 (8th Cir. 2011) (en banc). We review the district court’s denial of Voss’s\nmotion to reconsider filed under Fed. R. Civ. P. 59(e) for an abuse of discretion. See\nSchoffstall v. Henderson, 223 F.3d 818, 827 (8th Cir. 2000).\n\n A. Exhaustion\n\n We begin our analysis by considering Voss’s challenge to the district court’s\nholding that he failed to exhaust all of his claims other than his disability\ndiscrimination and constitutional due process claims. The ADA requires a plaintiff\nto file a complaint with the EEOC before filing a suit in federal court. See Sellers v.\nDeere & Co., 791 F.3d 938, 943 (8th Cir. 2015). “‘Each incident of discrimination\nand each retaliatory adverse employment decision constitutes a separate actionable\nunlawful employment practice’ that must be individually addressed before the\nEEOC.” Id. at 943 (emphasis added) (quoting Richter v. Advance Auto Parts, Inc.,\n686 F.3d 847, 851 (8th Cir. 2012) (per curiam)).\n\n The only claim Voss mentions in his briefing on appeal with regard to\nexhaustion is one for constructive discharge.4 The totality of his exhaustion argument\nis that his “[a]mended EEOC charge states that the Defendants retaliated against him\nby revoking his duties and that the adverse action was ongoing. That same ongoing\naction is what constituted the constructive discharge.” But Voss’s assertion regarding\n\n\n 4\n Voss does not reference his Title VII, hostile work environment, or demotion\nclaim, and does not develop any arguments as to how the district court erred as to\nthese claims in its exhaustion analysis. Consequently, like the district court we\nconclude Voss abandoned these claims. See Blakley v. Schlumberger Tech. Corp.,\n648 F.3d 921, 931 (8th Cir. 2011) (holding the appellant waived a challenge to the\ndistrict court’s conclusion that she failed to exhaust her administrative remedies\nbecause she did not make any supporting arguments on appeal).\n\n -5-\n\fthe contents of the EEOC charge is not accurate, as it says nothing about the Housing\nAuthority revoking his duties. Instead, the only adverse action he alleged in his\ncharge to the EEOC was his placement on suspension and the threat of discharge. By\nnot including in his EEOC charge the adverse acts which he maintains forced him to\nresign, Voss failed to administratively exhaust his constructive discharge allegation.\n\n B. ADA Discrimination Claim\n\n The district court determined that summary judgment in favor of the Housing\nAuthority was warranted on Voss’s disability discrimination claim because he did not\nestablish a prima facie case of discrimination. We agree.\n\n Employers may not discriminate against employees regarded as having a\ndisability. See Parker v. Crete Carrier Corp., 839 F.3d 717, 724 (8th Cir. 2016)\n(citing 42 U.S.C. §§ 12102(1)(C), 12112(a)). “A plaintiff alleging regarded-as\ndiscrimination may make out a prima facie case using the McDonnell Douglas\nburden-shifting framework.” Id. (referring to McDonnell Douglas Corp. v. Green,\n411 U.S. 792 (1973)).\n\n To survive summary judgment, it is first Voss’s burden to make a prima facie\ncase of regarded-as-disabled discrimination by showing: (1) the Housing Authority\nregarded him as having a disability, (2) he was qualified to perform the essential\nfunctions of his job with or without reasonable accommodation, and (3) the Housing\nAuthority took adverse action due to his perceived disability. See id. If Voss\nsucceeds, the burden of production shifts to the Housing Authority “to proffer a\nlegitimate, nondiscriminatory reason for the adverse action.” Id. If such a proffer is\nmade, the burden of production returns to Voss to demonstrate the articulated reason\nwas a pretext for discrimination. See id.\n\n\n\n\n -6-\n\f While the Housing Authority and Wyse bore the initial burden of\ndemonstrating the basis for their motion and identifying the portions of the record\nthey believe show an absence of a genuine issue of material fact, upon doing so Voss\nwas obliged to “come forward with ‘specific facts showing that there [was] a genuine\nissue for trial.’” Torgerson, 643 F.3d at 1042 (quoting Matsushita Elec. Indus. Co.\nv. Zenith Radio Corp, 475 U.S. 574, 587 (1986)). The existence of “some\nmetaphysical doubt as to the material facts” is not enough to defeat a properly\nsupported motion for summary judgment. Id. (quoting Matsushita, 475 U.S. at 586).\n\n In the case at bar, the district court reasoned summary judgment was\nappropriate, in part, because Voss could not show that he suffered an adverse\nemployment action due to a perceived disability. Thus, he failed to satisfy the third\nelement of his prima facie case. The district court rejected Voss’s argument that his\nsuspension could qualify as an adverse action because there was no evidence that\nWyse knew of any possible disability before Voss returned to work on May 14 and\nexplained his medical issues to Wyse.\n\n We agree with this assessment. Assuming without deciding that Voss’s paid\nsuspension even qualifies as an adverse action,5 the fact the suspension concluded\nbefore Wyse had possible reason to suspect Voss might be disabled eliminates the\npossibility of the third element being satisfied.\n\n\n\n\n 5\n Our case law indicates Voss’s suspension does not qualify as an adverse act.\nSee Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 891–92 (8th Cir. 2005) (holding\nthe employer’s act of putting an employee on administrative leave pending an\ninvestigation did not qualify as an adverse employment action for purposes of a Title\nVII claim where the employee maintained his pay, grade, and benefits during his\nleave, and was restored to his position promptly after the investigation concluded).\nHowever, it is unnecessary for us to decide the issue since Voss’s claim fails on other\ngrounds.\n\n -7-\n\f We reject Voss’s argument that a genuine dispute exists as to whether Wyse\nregarded Voss as disabled before May 14 based on Wyse’s knowledge that Voss\nfailed the drug test on account of his prescribed hydrocodone. The fact Wyse knew\nVoss was taking hydrocodone by itself is not enough evidence to infer Wyse regarded\nVoss as disabled as that term is defined in the ADA.\n\n The Housing Authority’s request to Voss for a letter from his healthcare\nprovider to establish he could still safely perform his work duties does not change our\nconclusion. Nothing in the record indicates this request was made because there was\nconcern a disability prevented Voss from performing aspects of his job. Instead, the\nonly reasonable inference from the record is that the Housing Authority was\nconcerned as to whether Voss’s medication interfered with his ability to safely\nperform job-related tasks.\n\n Finally, we reject Voss’s contention that the Housing Authority took adverse\nacts after his meeting with Wyse by putting some restrictions on his work. As\ndiscussed above, Voss did not raise any of these acts in his EEOC charge, and thus\nthey are not exhausted. See Sellers, 791 F.3d at 943 (explaining each retaliatory\nadverse employment decision must be individually addressed before the EEOC).\nEven if they were exhausted, none of these acts were sufficiently adverse to satisfy\nVoss’s burden. See Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850,\n853–54 (8th Cir. 2000) (holding a job transfer involving only minor changes in\nworking conditions without a reduction in pay or benefits is not an adverse action);\nHarlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (holding a\nreassignment without a diminution in title, salary, and benefits created no material\ndisadvantage and thus was not an adverse employment action). We affirm the district\ncourt’s grant of summary judgment on Voss’s ADA discrimination claim.\n\n\n\n\n -8-\n\f C. Procedural Due Process Claim\n\n We next address Voss’s argument that the district court erred by granting\nsummary judgment to the Housing Authority and Wyse on his constitutional\nprocedural due process claim. In order to prevail, Voss must show he possessed a\nproperty interest in his employment pursuant to Arkansas law. See Bennett v.\nWatters, 260 F.3d 925, 927 (8th Cir. 2001) (analyzing a federal due process claim\nbased on Arkansas law regarding entitlement to continued employment). He cannot\ndo so.\n\n “A property interest arises from a ‘legitimate claim of entitlement’ to\ncontinuing employment.” Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577\n(1972)). “A public employee has a property interest when there are ‘contractual or\nstatutory limitations on the employer’s ability to terminate an employee,’ such as a\ncontractual right to be terminated only for cause.” Id. (quoting Winegar v. Des\nMoines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994)).\n\n Under Arkansas law, an employer may generally terminate an at-will employee\nsuch as Voss without cause. See Crawford Cty. v. Jones, 232 S.W.3d 433, 438 (Ark.\n2006). Two exceptions exist to the Arkansas at-will doctrine: “(1) where an\nemployee relies upon a personnel manual that contains an express provision against\ntermination except for cause; and (2) where the employment agreement contains a\nprovision that the employee will not be discharged except for cause, even if the\nagreement has an unspecified term.” Id. Neither exception is applicable here.\n\n Voss unsuccessfully attempts to evade this result by pointing to a statement in\na policy manual that the Housing Authority was an “equal opportunity employer” and\nthat “[a]ll personnel actions affecting qualified employees and applicants for\nemployment will be taken without regard to age, race, creed, color, sex, handicap,\nreligion . . . .” But when an employee relies on a personnel manual to attempt to\n\n -9-\n\fmodify at-will employment, Arkansas law dictates the manual “must contain ‘an\nexpress provision against termination except for cause.’” Bennett, 260 F.3d at 929\n(quoting Gladden v. Ark. Children’s Hosp., 728 S.W.2d 501, 505 (Ark. 1987)). “[A]n\nimplied provision against the right to discharge will not be sufficient to invoke the\nexception.” Id. (alteration in original) (quoting St. Edward Mercy Med. Ctr. v.\nEllison, 946 S.W.2d 726, 729 (Ark. App. 1997)). The equal opportunity portion of\nthe employee manual contains no express provision forbidding termination without\ncause and it therefore cannot serve as the basis for a legitimate claim of entitlement\nin continuing employment.\n\n Finally, although his last argument is not entirely clear, Voss seems to also\nargue his due process rights were violated because the Housing Authority failed to\nfollow its own policy regarding suspensions of employees by not properly\nsubstantiating the results of his drug test. In support of his argument, Voss relies on\na provision of what he claims was the Housing Authority’s Operating Policy Manual,\nwhich states:\n\n Suspension: An employee may be suspended from duty without pay for\n a period not to exceed fifteen (15) days for the following reasons:\n\n Pending investigation of charges which, if substantiated, would result\n in dismissal. However, if such investigation does not substantiate the\n charges preferred and the employee is retained, the employee shall be\n compensated for the period of suspension at his or her regular rate of\n pay.\n\n Even if this provision could create some legal entitlement for Voss, his\nargument fails because he cannot show this provision was violated. The undisputed\nfacts reveal Voss was fully paid during this suspension and he was never terminated\nbecause of the results of the drug test. Thus, there is no factual basis to entertain\nVoss’s legal theory.\n\n\n -10-\n\f Because Voss was an at-will employee and he has failed to articulate any other\nbasis from which he could claim entitlement to continued employment under\nArkansas law, his constitutional due process claim fails as a matter of law. The\ndistrict court was correct to grant summary judgment to the Housing Authority and\nWyse on this claim.6\n\n III. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n 6\n We also conclude the district court did not abuse its discretion in denying\nVoss’s Rule 59(e) motion, which largely repeated the same arguments advanced at\nthe summary judgment stage. See Schoffstall, 223 F.3d at 827 (holding the district\ncourt did not abuse its discretion in denying a Rule 59(e) motion which merely\nrestated arguments made in opposition to summary judgment).\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370717/", "author_raw": "GRASZ, Circuit Judge."}]}	COLLOTON	GRUENDER	GRASZ	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593464/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,465	Judith WURSTER, Individually and as Its Administrator Executor the Estate of James Wurster Plaintiff - Appellant v. the PLASTICS GROUP, INC., Doing Business as Wedco, Doing Business as Wedco Moulded Products Company Defendant - Appellee	Judith Wurster v. The Plastics Group	2019-02-25	17-2698	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Melloy, Erickson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2698\n ___________________________\n\nJudith Wurster, individually and as its administrator executor The Estate of James Wurster\n\n Plaintiff - Appellant\n\n v.\n\n The Plastics Group, Inc., doing business as Wedco, doing business as Wedco\n Moulded Products Company\n\n Defendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: December 11, 2018\n Filed: February 25, 2019\n ____________\n\nBefore LOKEN, MELLOY, and ERICKSON, Circuit Judges.\n ____________\n\nERICKSON, Circuit Judge.\n\n James Wurster (“Mr. Wurster”) suffered fatal burns when a gas can\nmanufactured by Appellee The Plastics Group, Inc. (“TPG”) exploded as he was\nburning garbage on his farm in Iowa. His wife, Judith Wurster (“Mrs. Wurster”),\nfiled suit, both in her personal capacity and in representative capacity for the estate\nand heirs-at-law, against TPG. After trial, a jury rendered a take-nothing verdict\n\funder Iowa’s comparative fault scheme, finding TPG forty-five percent at fault for\nMr. Wurster’s death due to its failure to provide adequate warnings on the gas can\nand apportioning the balance of the fault to Mr. Wurster. See Iowa Code § 668.3(1).\nMrs. Wurster appeals, asserting the district court1 erred by (1) refusing to give her\nproposed design defect instruction; (2) instructing the jury on reasonable alternative\ndesign; (3) including two separate assumption of risk instructions; and (4) granting\njudgment as a matter of law on her post-sale failure-to-warn claim. We affirm.\n\n I. Background\n\n In the late morning of February 8, 2013, Mr. Wurster stood in the backyard of\nhis farmhouse in Lenox, Iowa, attempting to burn some trash in a burn barrel. As a\nfire or embers burned inside the barrel, Mr. Wurster poured gasoline from a gas can\ninto the barrel. This caused a flame to travel up the stream of gasoline into the can.\nVapors inside the can ignited, and the can exploded.\n\n When Mrs. Wurster heard the explosion, she rushed outside to see her husband\non fire, running toward her, and pleading for help. By the time they were able to\nextinguish the fire, it had burned most of Mr. Wurster’s clothing and skin. Despite\nhis injuries, Mr. Wurster was lucid and coherent. He let a responding officer inside\nthe farmhouse and told the officer “he had been in the process of starting a fire to\nburn some scraps around the yard area there and a gas can exploded and that’s what\ncaused the injuries.”\n\n Mr. Wurster was rushed by helicopter to a hospital in Iowa City. When Mrs.\nWurster arrived at the hospital, she was told that her husband’s injuries were fatal,\nwould inevitably lead to systemic organ failure, and that the only care that medical\n\n\n 1\n The Honorable Charles R. Wolle, United States District Judge for the Southern\nDistrict of Iowa.\n\n -2-\n\fstaff could provide was to keep Mr. Wurster as comfortable as possible. Mr. Wurster\ndied the next day with his wife and some of his children by his side.\n\n The gas can used by Mr. Wurster was a Model W520 can that TPG\nmanufactured in November 2000 under the brand name Wedco. It is unknown when\nand where the Wursters purchased the can. Embossed on one side of the can was a\nwarning:\n\n GASOLINE\n DANGER – FLAMMABLE\n EXTREMELY FLAMMABLE – VAPORS CAN EXPLODE\n\n ...\n\n CAUTION: . . . VAPORS CAN BE IGNITED BY A SPARK\n OR FLAME SOURCE MANY FEET AWAY – KEEP AWAY\n FROM FLAME . . . AND OTHER SOURCES OF IGNITION –\n KEEP CONTAINER CLOSED\n\nThe can had a removable front pouring nozzle that contained a debris screen. The\ndebris screen functioned as a flame arrester. A flame arrester is a mesh screen that\nallows air and liquid—but not sparks and flames—to pass through. The can had a\nvent hole in the back that was not protected by a mesh screen. The experts who\ntestified at trial did not agree on whether Mr. Wurster had poured gas out of the main\nhole of the can after removing the nozzle or out of the rear vent hole.\n\n The possibility of fire while using a gas can has been known for over a century,\nand efforts to avoid such fires by use of a flame arrester can design date to at least a\npatent in 1871. Safety organizations and Consumer Reports have urged the industry\nto take precautions to protect against explosions caused by the lack of a flame arrester\nsince the 1970s. By the time the can in question was manufactured, many of TPG’s\ncompetitors were manufacturing cans that included flame arresters. TPG could have\n\n -3-\n\fadded a basket-type flame arrester to its gas cans for as little as five to ten cents per\ncan.\n\n TPG acknowledged at trial that while it was aware of the possibility that\nexplosions could be caused by the lack of flame arresters by at least 2006, it provided\nno post-sale warnings to previous purchasers of its cans. They did, however, change\nthe warning label on newly manufactured cans. A TPG representative explained the\ncompany does not make retail sales of its products and had no way of identifying\nwhere Mr. Wurster purchased the can or whether he was the original purchaser.\nWhile TPG was aware of which big box retailers it sold its products to, it had no way\nof knowing which particular stores sold the W520 gas can.\n\n This appeal focuses primarily on the court’s jury instructions. The case was\ntried to a jury on a negligence theory, with the jury being instructed on two\nspecifications of negligence requested by Mrs. Wurster. Instruction No. 12 stated that\nin order to prevail on the negligence claim, Mrs. Wurster must prove TPG was\nnegligent in (1) its “design of its gas cans” and/or (2) its “failure to provide adequate\ngas can warnings.”\n\n Instruction Nos. 13 and 18 are the assumption of risk instructions at issue in\nthis appeal. Instruction No. 13 read:\n\n TPG claims that James Wurster was at fault by being negligent.\n In order to prove this claim, it must prove\n\n 1. James Wurster was negligent in one or more of the following\n ways:\n\n a. misuse of the gas can by attempting to pour gasoline on\n a fire;\n\n\n\n -4-\n\f b. misuse of the gas can by attempting to pour gasoline\n from the vent hole; and\n\n c. unreasonable assumption of the risk.\n\n 2. James Wurster’s fault was a cause of plaintiffs’ damage.\n\n If TPG failed to prove either of these propositions, TPG has not\nproved its defense. If TPG has proved both of these propositions, then\nyou will assign a percentage of fault against James Wurster and include\nhis fault in the total percentage of fault found by you in answering the\nspecial verdicts.\n\nInstruction No. 18 read:\n\n TPG claims that James Wurster unreasonably assumed the risk by\npouring gasoline onto the fire or using the vent hole to pour gasoline.\n\n To prove this defense, TPG must prove all of the following\npropositions:\n\n 1. James Wurster knew the risk was present.\n\n 2. James Wurster understood the nature of the risk to himself.\n\n 3. Nevertheless, James Wurster unreasonably, freely, and\n voluntarily took the risk.\n\n 4. James Wurster’s assumption of the risk was a cause of\n plaintiffs’ damage.\n\n If TPG has failed to prove any of these propositions, it has not\nproved this defense. If TPG has proved all these propositions, then you\nwill assign a percentage of fault against James Wurster and include it in\nthe total percentage of fault, if any, found by you in your answers to the\nspecial verdicts.\n\n\n -5-\n\fMrs. Wurster objected unsuccessfully to submitting assumption of risk both as a\nnegligence factor in the comparative fault instruction and as a separate instruction.\n\n Mrs. Wurster proposed a jury instruction based upon Iowa Civil Jury\nInstruction 1000.2, which is titled “Design Defect - Essentials for Recovery.” At the\ninstructions conference, the court proposed a modified version of Mrs. Wurster’s\nproposed instruction as Jury Instruction No. 14. The court’s proposed instruction was\nsubstantially similar to Mrs. Wurster’s except for its mention of strict products\nliability in the preamble:\n\n Plaintiffs claim TPG was at fault under a theory of strict products\n liability. In order to prove a claim of design defect, they must prove all\n of the following propositions:\n\n 1. TPG manufactured the gas can,\n\n 2. TPG was engaged in the business of manufacturing gas cans,\n\n 3. The gas can did not comply with the state of the art at the time\n of its manufacture,\n\n 4. The gas can was in a defective condition at the time it left\n TPG’s control, in that it lacked flame arrestors on all openings.\n\n 5. A reasonable alternative safer design could have been\n practically adopted at the time of sale or distribution.\n\n 6. The alternative design would have reduced or avoided the\n foreseeable risks of harm posed by the gas can.\n\n 7. The omission of the alternative design renders the gas can not\n reasonably safe.\n\n\n\n -6-\n\f 8. The alternative design would have reduced or prevented\n plaintiffs’ harm.\n\n [9]. The amount of damage.\n\n If plaintiffs failed to prove any of these propositions, they are not\n entitled to damages on this theory of recovery. If plaintiffs have proved\n all of these propositions, then you will consider the defense of\n comparative fault.\n\nCounsel for TPG objected to the mention of strict products liability, arguing defective\ndesign under Iowa law is a negligence concept, and suggested the words “strict\nproducts liability” be replaced with “defective design.” When Mrs. Wurster’s counsel\ninsisted the “instruction is not a negligence instruction, and it would be error to give\nit if the court is not giving a strict products liability instruction,” the court decided not\nto give Jury Instruction No. 14.\n\n Both parties proposed a reasonable alternative design instruction based on Iowa\nCivil Jury Instruction 1000.4, which is the counterpart to—and specifically\nreferences—Iowa Civil Jury Instruction 1000.2. During the instructions conference,\nMrs. Wurster’s attorney argued the court could not give Instruction No. 15—the\ncourt’s modified version of her proposed reasonable alternative design instruction—if\nit did not also give Instruction No. 14. The court overruled the objection, responding\n“15 is needed for the question of design negligence.” Instruction No. 15 instructed\nthe jury to consider a list of several factors “to determine whether an alternative\ndesign is reasonable and whether its omission renders the gas can not reasonably\nsafe.”\n\n At the conclusion of the evidence, the court granted TPG’s motion for\njudgment as a matter of law on Mrs. Wurster’s post-sale failure-to-warn claim. On\nApril 12, 2017, the jury returned a special verdict, finding TPG did not sell a\ndefectively designed gas can but TPG did fail to provide adequate warnings on the\n\n -7-\n\fgas can. The jury determined TPG was forty-five percent at fault for Mr. Wurster’s\ninjuries and Mr. Wurster was fifty-five percent at fault. Pursuant to the Iowa\nComparative Fault Act, judgment was entered for TPG.2 The court denied Mrs.\nWurster’s motion for a new trial.\n\n II. Discussion\n\n A. Jury Instructions\n\n Mrs. Wurster asserts the district court’s jury instructions erroneously\nemphasized Mr. Wurster’s alleged fault and failed to present what she perceives to\nbe her primary claim. We review for abuse of discretion a court’s jury instructions.\nBrown v. Sandals Resorts Int’l, 284 F.3d 949, 953 (8th Cir. 2002). The district court\nhas broad discretion in formulating jury instructions. Id. (quoting B&B Hardware,\nInc. v. Hargis Indus., 252 F.3d 1010, 1012 (8th Cir. 2001)). The instructions “taken\nas a whole” must “fairly and adequately represent the evidence and applicable law in\nlight of the issues presented to the jury in a particular case.” Id. (quoting Ford v.\nGACS, Inc., 265 F.3d 670, 679 (8th Cir. 2001)). We have noted that jury instructions\nneed not be “technically perfect or even a model of clarity.” Id. (quoting B&B\nHardware, 252 F.3d at 1012). When reviewing a district court’s refusal to adopt a\nproposed instruction, we consider a three-part test: “the proposed instruction must (1)\ncorrectly state the applicable law; (2) address matters not adequately covered by the\ncharge; and (3) involve a point ‘so important that failure to give the instruction\nseriously impaired the party’s ability to present an effective case.’” Cox v. Dubuque\nBank & Tr. Co., 163 F.3d 492, 496 (8th Cir. 1998) (quoting Thomlison v. City of\nOmaha, 63 F.3d 786, 791 (8th Cir. 1995)).\n\n 2\n Iowa Code § 668.3(1) states, “Contributory fault shall not bar recovery . . .\nunless the claimant bears a greater percentage of fault than the combined percentage\nof fault attributed to the defendants, . . . but any damages allowed shall be diminished\nin proportion to the amount of fault attributable to the claimant.”\n\n -8-\n\f i. Design Defect Instruction\n\n Mrs. Wurster first contends the district court committed reversible error by\nfailing to provide a design defect instruction based on Iowa Civil Jury Instruction No.\n1000.2. She asserts the court should have given either her proposed instruction or the\ncourt’s proposed Instruction No. 14. Under Iowa law, Mrs. Wurster was not entitled\nto submit both a negligence claim and a strict liability claim to the jury based on the\nsame design defect. The Iowa Supreme Court has held that “a court should not\nsubmit both a negligence claim and a strict liability claim based on the same design\ndefect since both claims rest on an identical risk-utility evaluation.” Wright v.\nBrooke Grp. Ltd., 652 N.W.2d 159, 169 (Iowa 2002) (citation omitted).3 The Iowa\nSupreme Court has also held that design defect claims are not strict liability claims.\nScott v. Dutton-Lainson Co., 774 N.W.2d 501, 505 (Iowa 2009). See also Wright,\n652 N.W.2d at 168 (“The Products Restatement demonstrates a recognition that strict\nliability is appropriate in manufacturing defect cases, but negligence principles are\nmore suitable for other defective product cases.”). The court properly declined to\ngive Instruction No. 14 because the proposed instruction as drafted was inconsistent\nwith Iowa law.\n\n Mrs. Wurster’s claim that she was denied the opportunity to present her design\ndefect claim is equally unavailing. While an instruction based on Iowa Civil Jury\nInstruction 1000.2 might have set forth the design defect claim more clearly than the\n\n 3\n Mrs. Wurster argues our decision in McGuire v. Davidson Mfg. Corp., 398\nF.3d 1005 (8th Cir. 2005), allows a plaintiff, post-Wright, to bring both claims.\nMcGuire is inapposite. In McGuire, whether a plaintiff can bring both a product\ndefect claim and negligence claim for the same defect was not before the court.\nInstead, under plain-error review, we concluded that while conformance with the state\nof the art is a complete defense under Iowa law to product-defect claims, the Iowa\nSupreme Court “would likely find that proof of the state-of-the-art defense does not\nautomatically exonerate a defendant from liability for general negligence.” Id. at\n1010.\n\n -9-\n\fcourt’s final instructions did, the claim and its elements were presented to the jury in\nthe court’s instructions. Instruction No. 12 included design defect as one of two\nspecifications of negligence and explained that TPG’s negligence must have been a\ncause of Mr. Wurster’s injuries. Instruction No. 11 instructed that negligence is the\n“failure to use ordinary care . . . which a reasonably careful person would use under\nsimilar circumstances.” Instruction No. 15 provided a list of factors to guide the\njury’s consideration of negligent design, which involved a determination of “whether\nan alternative design [was] reasonable and whether its omission render[ed] the gas\ncan not reasonably safe” based on “the foreseeable risks of harm.” Looking to the\ninstructions as a whole, as we must, Mrs. Wurster’s design defect claim was\nsufficiently presented to the jury. The court did not abuse its discretion.\n\n ii. Reasonable Alternative Design Instruction\n\n Mrs. Wurster next argues the district court erred when it instructed the jury on\nreasonable alternative design in Instruction No. 15 despite declining to give\nInstruction No. 14 or her proposed design defect instruction. Instruction No. 15 was\nbased on Iowa Civil Jury Instruction No. 1000.4, which Mrs. Wurster—citing no\nauthority—asserts cannot be given without Iowa Civil Jury Instruction No. 1000.2.\nTo the contrary, “[i]n the exercise of [a court’s] broad discretion [in forming jury\ninstructions], state-mandated instruction forms may be given in their entirety or mixed\nwith other instructions that the district judge feels are appropriate.” Chohlis v.\nCessna Aircraft Co., 760 F.2d 901, 904 (8th Cir. 1985).\n\n Mrs. Wurster also argues that by “giving Instruction No. 15 without its partner\ninstruction, the court created chaos in the instructions” and told the jury “what factors\nto consider when deciding an issue that the instructions never presented to the jury\nto decide.” We disagree. The court instructed the jury on design defect based on a\nnegligence theory in Instruction No. 12. Instruction No. 15 pertained to whether TPG\nacted reasonably by not using an alternative design for its gas cans. The instruction\n\n -10-\n\fwas necessary to provide the jury with the proper factors for conducting the\nrisk-utility test required for design defect claims. The court did not err by instructing\nthe jury on reasonable alternative design.\n\n iii. Assumption of Risk Instructions\n\n Mrs. Wurster’s final challenge to the jury instructions involves the district\ncourt’s inclusion of assumption of risk as both a species of fault in the comparative\nfault instruction and as a separate instruction. Mrs. Wurster argues the instructions\nunduly emphasized her husband’s alleged fault and violated the Iowa Supreme\nCourt’s decision in Coker v. Abell-Howe Co., 491 N.W.2d 143 (Iowa 1992), in which\nthe court held “assumption of risk may not be pleaded or instructed upon as a separate\ndefense in cases in which contributory negligence is an available defense under the\nIowa Comparative Fault Act . . .” Id. at 148.\n\n Here, the district court instructed the jury in a manner somewhat inconsistent\nwith Coker. The court included assumption of risk as a species of fault in Instruction\nNo. 13, identifying assumption of risk as one of three ways in which Mr. Wurster was\nallegedly negligent. The instruction further directed the jury to assign fault against\nMr. Wurster if the evidence established the unreasonable assumption of risk caused\nhis injuries. The district court then gave a separate assumption of risk instruction in\nInstruction No. 18. The instruction stated, “TPG claims that [Mr.] Wurster\nunreasonably assumed the risk by pouring gasoline onto the fire or using the vent\nhole to pour gasoline. To prove this defense, TPG must prove all of the following\npropositions.” The instruction listed the four elements of assumption of risk and then\ninstructed the jury, “If TPG has failed to prove any of these propositions, it has not\nproved this defense.” The instruction’s use of the phrase “this defense” appears at\nfirst blush to present the assumption of risk doctrine as both a species of fault and a\nseparate defense.\n\n\n\n -11-\n\f This view fails, however, to take into account the final director, which simply\ndirects the jury to apportion such fault as may have been caused by the unreasonable\nassumption of risk. In context, the instruction is simply a definition setting forth the\nelements of an unreasonable assumption of risk. The inclusion of the phrase “this\ndefense,” while unfortunate, does not direct the jury to do anything other than what\nit was directed to do in Instruction No. 13. The instruction provided a necessary\ndefinition of assumption of risk that was otherwise absent from the jury instructions.\n\n While the instructions are no model of clarity, our review of the record\ndemonstrates no prejudice. During closing argument, Mrs. Wurster’s counsel argued\nto the jury that there was no doubt about the facts and there was no doubt the fixes\nwere easy. Counsel told the jurors that looking at the instructions would “lead [the\njurors] home and allow [them] to reach a fair verdict in the case.” He highlighted\ncertain jury instructions, including No. 12 that required Mrs. Wurster to prove either\ndesign defect or failure to provide adequate warnings, not both claims. Counsel for\nboth sides discussed extensively allocation of fault. Mrs. Wurster focused on the lack\nof a flame arrester and the inexpensive and simple fixes available. TPG directed the\njury’s attention to evidence suggesting misuse. Mrs. Wurster’s counsel went through\nthe questions on the special verdict form in detail with the jury, suggesting to the jury\nthe appropriate answers to certain questions. The jury was well informed about the\nissues involved in the case and nothing in the jury instructions precluded Mrs.\nWurster from fairly presenting or arguing her claims. Under the circumstances, we\nfind no prejudice. See Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 720 (8th Cir.\n2008) (citing Burry v. Eustis Plumbing & Heating, Inc., 243 F.3d 432, 434 (8th Cir.\n2001)) (“Reversal is only warranted if a party’s substantial rights are prejudiced by\ninstructional error.”).\n\n\n\n\n -12-\n\f B. Post-Sale Failure-to-Warn Claim\n\n Mrs. Wurster argues the district court erred when it granted judgment as a\nmatter of law for TPG on her post-sale failure-to-warn claim. We review a district\ncourt’s grant of judgment as a matter of law de novo, “viewing the evidence in the\nlight most favorable to the nonmoving party while giving that party the benefit of all\nreasonable inferences.” Children’s Broad. Corp. v. Walt Disney Co., 245 F.3d 1008,\n1015 (8th Cir. 2001) (citation omitted). Judgment as a matter of law is appropriate\nonly when “all of the evidence points one way and is ‘susceptible of no reasonable\ninference sustaining the position of the nonmoving party.’” Stults v. Am. Pop Corn\nCo., 815 F.3d 409, 418 (8th Cir. 2016) (quoting Howard v. Mo. Bone & Joint Ctr.,\nInc., 615 F.3d 991, 995 (8th Cir. 2010)).\n\n Iowa has adopted the four factors found in the Restatement (Third) of Torts:\nProduct Liability § 10 as the elements of a post-sale failure-to-warn claim:\n\n (a) One engaged in the business of selling or otherwise distributing\n products is subject to liability for harm to persons or property caused by\n the seller’s failure to provide a warning after the time of sale or\n distribution of a product if a reasonable person in the seller’s position\n would provide such a warning.\n\n (b) A reasonable person in the seller’s position would provide a warning\n after the time of sale if:\n\n (1) the seller knows or reasonably should know that the product\n poses a substantial risk of harm to persons or property; and\n\n (2) those to whom a warning might be provided can be identified\n and can reasonably be assumed to be unaware of the risk of harm;\n and\n\n\n\n\n -13-\n\f (3) a warning can be effectively communicated to and acted on by\n those to whom a warning might be provided; and\n\n (4) the risk of harm is sufficiently great to justify the burden of\n providing a warning.\n\nLovick v. Wil-Rich, 588 N.W.2d 688, 694 (Iowa 1999) (quoting Restatement (Third)\nof Torts: Products Liability § 10 (Am. Law Inst. 1997)). “Normally, . . . the jury\ndetermines whether a warning of product danger should have been given,” but “the\nparticular circumstances of a case may permit a trial court to utilize the [Restatement]\nfactors to determine as a matter of law no duty existed.” Id. at 696 (citations\nomitted).\n\n We agree with the district court that Mrs. Wurster presented insufficient\nevidence to show TPG had a post-sale duty to warn consumers of the danger posed\nby its W520 gas cans. It is clear from the record TPG lacked the ability to identify\nthe Wursters—or any other individuals—as users of the gas can. While TPG knew\nwhich big box store companies it sold gas cans to, it had no way of knowing which\nindividual stores—in Iowa or elsewhere—were retailing the W520 gas can, as\nindividual stores were given the ability to choose whether to carry TPG’s products.\nWithout a direct relationship with users of its gas cans, TPG had no way of\ndetermining who purchased the cans and who should have been warned.\n\n “Records [that] indicate classes of product users, or geographically limited\nmarkets” may be sufficient where records of “[i]ndividual names and addresses” do\nnot exist. Restatement (Third) of Torts: Products Liability § 10 cmt. e. “But when\nno such records are available, the seller’s inability to identify those for whom\nwarnings would be useful may properly prevent a post-sale duty to warn from\narising.” Id. Based on the evidence presented at trial, Mr. Wurster was simply a\n“member of a universe too diffuse and too large for manufacturers or sellers [like\nTPG] . . . to identify” or warn. Robinson v. S.D. Brandtjen & Kluge, Inc., 500 F.3d\n\n -14-\n\f691, 698 (8th Cir. 2007) (quoting Lewis v. Ariens Co., 751 N.E.2d 862, 867 (Mass.\n2001)). The district court did not err by granting judgment as a matter of law for\nTPG.\n\n III. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -15-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370718/", "author_raw": "ERICKSON, Circuit Judge."}]}	LOKEN	MELLOY	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593465/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,466	John JOHNSTON Plaintiff - Appellant v. PRUDENTIAL INSURANCE COMPANY OF AMERICA Defendant - Appellee	John Johnston v. Prudential Insurance Co.	2019-02-25	17-3415	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Wollman, Grasz", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3415\n ___________________________\n\n John Johnston\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Prudential Insurance Company of America\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Western Division\n ____________\n\n Submitted: December 11, 2018\n Filed: February 25, 2019\n ____________\n\nBefore SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n John Johnston appeals a district court1 order finding that Prudential Insurance\nCompany of America (“Prudential”) did not abuse its discretion when it terminated\nhis long term disability benefits. We affirm the district court’s order.\n\n\n 1\n The Honorable David Gregory Kays, then Chief United States District Judge\nfor the Western District of Missouri, now United States District Judge for the Western\nDistrict of Missouri.\n\f I. Background\n\n Johnston was an Enterprise Storage Engineer in the computer department at\nCommerce Bancshares, Inc. (“Commerce”). As part of an employee welfare benefit\nplan (the “Plan”), Commerce provided its employees long-term disability (“LTD”)\ninsurance from Prudential.\n\n In July 2013, Johnston became unable to continue working due to complications\nfrom hydrocephalus, which ultimately led to surgery to remove a colloid cyst from his\nbrain. Johnston filed a claim for LTD benefits with Prudential. Dr. Kala Danushkodi,\nJohnston’s treating physician, submitted a statement that Johnston had “cognitive\nimpairment / moderate to severe” and was unable to return to work due to the\nimpairment.\n\n Prudential sent Johnston a letter approving his claim for LTD benefits in\nNovember 2013. Prudential also requested the results of two neuropsychological\nexaminations “for the ongoing review of your claim and benefits beyond December\n31, 2013.” It further advised that it would “periodically review your claim, and\nrequest or obtain information, to ensure that you meet all eligibility requirements.”\n\n After receiving and reviewing the results of Johnston’s examinations, Prudential\nstaff noted that one of the tests was not valid due to Johnston’s inconsistent\nperformance. After Johnston underwent an additional surgery in March 2014 to place\na shunt in his head, Prudential decided that another neuropsychological evaluation was\nneeded to determine whether he continued to be disabled.\n\n Neuropsychologist Dr. Robert Denney examined Johnston in June 2014. Dr.\nDenney used multiple tests for the validity of Johnston’s responses, both “embedded”\n\n\n\n -2-\n\fand “free-standing.”2 He was unable to determine whether Johnston was cognitively\nimpaired because Johnston failed almost all of the validity tests. Dr. Denney opined\nthat two of the free-standing validity tests indicated that Johnston “was actively\nattempting to perform poorly.” In a supplemental addendum to his report, Dr. Denney\nreviewed the data from two of Johnston’s previous examinations. He did not change\nhis conclusions about Johnston because one examination had failed validity indicators,\nwhile the other examination had inconsistent results that suggested invalidity.\n\n Based on Dr. Denney’s report and addendum, Prudential terminated Johnston’s\nLTD benefits as of September 1, 2014. It determined that Johnston had failed to\nsupport his claim that he was still unable to work due to cognitive impairment.\n\n Johnston appealed the termination of his LTD benefits. In support of his\nappeal, he submitted a statement from his therapist, Dr. Marcia Meyer, explaining that\nhe was exhausted by Dr. Denney’s tests and that he was unable to maintain the focus\nand concentration needed for his job.\n\n After reviewing Johnston’s appeal, Prudential sought a second\nneuropsychological examination. Dr. Michelle Zeller examined Johnston in June\n2015, and she reported that he failed all nine validity measures on the tests she\nadministered. She concluded that he was attempting to appear more impaired than he\nactually is, and she stated that she was unable to determine his level of impairment.\nDr. Zeller explained: “Failure on any one of these measures would raise the possibility\nof negative response bias, suboptimal effort and/or symptom exaggeration. Failure\non all nine, however, is compelling evidence of suboptimal effort.”\n\n\n\n 2\n As Dr. Denney explained, “[f]reestanding tests usually appear to measure a\ndomain such as memory, whereas, in reality, the test would only show impairment for\nthose individuals with extremely severe memory impairment,” while “[e]mbedded\nindices, on the other hand, are inside traditional, neuropsychological testing.”\n\n -3-\n\f Prudential upheld its denial of LTD benefits, and Johnston sued Prudential\nunder 29 U.S.C. § 1132(a)(1)(B), a part of the Employee Retirement Income Security\nAct of 1974 (“ERISA”). On cross-motions for summary judgment, the district court\ngranted summary judgment to Prudential and denied Johnston’s motion. Johnston\nfiled a motion to reconsider, which the court denied on the basis that it did not contain\nany new evidence or arguments not previously available. Johnston timely appealed.\n\n II. Standard of Review\n\n “We review the district court’s adjudication of [an ERISA] claim de novo,\napplying the same standard of review to the plan administrator’s decision as the\ndistrict court.” McClelland v. Life Ins. Co. of N. Am., 679 F.3d 755, 759 (8th Cir.\n2012). “When an ERISA-qualified employee benefit plan grants the plan\nadministrator the discretion to determine whether a claimant is eligible for benefits,\nreview of the administrator’s decision is for an abuse of discretion.” Id. “The\nadministrator’s decision should be affirmed if it is reasonable, meaning it is supported\nby substantial evidence.” Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1050 (8th Cir.\n2011). “Substantial evidence is more than a scintilla but less than a preponderance.”\nId. “[W]hen a conflict of interest exists because the plan administrator is both the\ndecision-maker and the insurer, ‘we take that conflict into account and give it some\nweight in the abuse-of-discretion calculation.’” Nichols v. Unicare Life & Health Ins.\nCo., 739 F.3d 1176, 1181 (8th Cir. 2014) (quoting Carrow v. Standard Ins. Co., 664\nF.3d 1254, 1259 (8th Cir. 2012)).\n\n III. Analysis\n\n Johnston acknowledges that the Plan gives Prudential discretion to determine\neligibility for benefits and that, as a result, an abuse of discretion standard applies.\nThus, the question on review is whether Prudential abused that discretion.\n\n\n\n -4-\n\f The Plan placed the burden on the beneficiary to provide proof of disability,\nincluding continuing disability. The Plan states, “We will stop sending you payments\nand your claim will end on the earliest of the following:” including, among other\nthings, “[t]he date you fail to submit proof of continuing disability satisfactory to\nPrudential.” Because ERISA allows a beneficiary to sue “to recover benefits due to\nhim under the terms of his plan,” a plan may place the burden of proving eligibility\non the beneficiary. See Farley v. Benefit Tr. Life Ins. Co., 979 F.2d 653, 658 (8th Cir.\n1992) (emphasis added) (quoting 29 U.S.C. § 1132(a)(1)(B)).\n\n We agree with the district court that the standard of review is dispositive in this\ncase. Johnston presented some evidence from his medical providers that he was\ndisabled. He genuinely had a colloid cyst in his brain, and the Social Security\nAdministration’s (“SSA’s”) reviewers found that he was “disabled” under the SSA’s\ndefinition of disability. But Prudential also had evidence that Johnston was\ndeliberately exaggerating his symptoms, making it impossible to determine whether\nhe had cognitive deficiencies that rendered him disabled. Prudential’s examinations\nalso occurred after the SSA’s review of Johnston’s condition, meaning that the SSA\ndid not know about Johnston’s potential malingering. Thus, as the district court\nstated, although a court “might have reached a different conclusion” under de novo\nreview, a court could find no abuse of discretion here because “Prudential’s decision\nis still supported by substantial evidence.”\n\n Johnston argues that because his evidence indicates he was disabled and\nPrudential’s examining doctors could not determine whether this was true, Prudential\nneeded to introduce new evidence to show that he was not disabled. He cites no\nauthority for the proposition that the burden of proof shifts after an initial\ndetermination of disability. Johnston cites Gunderson v. W.R. Grace & Co. Long\nTerm Disability Income Plan, 874 F.2d 496 (8th Cir. 1989) to argue that Prudential\nshould have obtained a vocational rehabilitation opinion. In Gunderson, we stated\nthat even if the beneficiary bears the burden of proof, a plan administrator cannot\n\n -5-\n\fchange its understanding of the same opinions from the same doctors without\nsubstantial evidence supporting the new understanding. See id. at 499–500 & n.4. It\nwas undisputed in Gunderson that the beneficiary was disabled for over two years.\nId. at 498. The plan administrator received reports on Gunderson’s condition from his\ntreating physician after one year, after two years, and after four years. See id. at 499.\nWe acknowledged the plan administrator may have had discretion to terminate\nbenefits under the second report. Id. at 500. Because Gunderson’s condition was the\nsame in the third report as in the second report, though, we found no substantial\nevidence supporting the plan administrator’s decision to terminate benefits when it\nreceived the third report after continuing them under the second report. Id. We\nsuggested, based on those facts, that the plan administrator should have obtained a\nvocational expert’s opinion before making a different decision on evidence that was\notherwise the same. Id. at 499.\n\n Here, Dr. Denney’s report and Dr. Zeller’s report support a new understanding\nof Johnston’s prior medical evidence: that he was malingering. This case is different\nfrom Gunderson because Prudential had evidence allowing it to reassess the prior\nevidence the beneficiary submitted. Thus, because Prudential’s changed decision was\nsupported by new evidence, as required in Gunderson, and because no authority\nrequires shifting the burden of proof to Prudential, we decline to adopt Johnston’s\nburden-shifting approach.\n\n Johnston also argues that if this termination is upheld, insurers will have an\nincentive to claim beneficiaries are malingering in order to terminate benefits and save\nmoney. This could be a persuasive argument if the determination of malingering were\na purely subjective or opinion-based determination, but there are multiple established\nways to test validity of a neuropsychological examination. Dr. Denney extensively\ndiscussed which tests he administered and how these tests objectively measure\nvalidity. On review of the validity tests administered to Johnston, we see no basis to\n\n\n\n -6-\n\fconclude that Prudential’s evidence of malingering was subjective or otherwise\nmanipulable by bias.\n\n In sum, under our de novo review, we agree with the district court that\nPrudential did not abuse its discretion in terminating Johnston’s benefits. There was\nsubstantial evidence to support Prudential’s conclusion that Johnston may have been\nmalingering in the tests he used as evidence to prove disability. As a result, Johnston\nfailed to provide sufficient evidence of continuing disability.\n\n IV. Conclusion\n\n We affirm the district court’s order because Prudential’s decision was not an\nabuse of discretion.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370719/", "author_raw": "GRASZ, Circuit Judge."}]}	SMITH	WOLLMAN	GRASZ	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593466/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,899	UNITED STATES of America, Plaintiff - Appellee v. Oscar CANAMORE, Defendant - Appellant	United States v. Oscar Canamore	2019-02-26	18-1419	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Colloton, Erickson", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1419\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Oscar Canamore\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Little Rock\n ____________\n\n Submitted: January 14, 2019\n Filed: February 26, 2019\n [Published]\n ____________\n\nBefore SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Oscar Canamore pled guilty to being a felon in possession of a firearm, in\nviolation of 18 U.S.C. § 922(g)(1). The district court1 sentenced Canamore to 84\n\n 1\n The Honorable D. P. Marshall, Jr., United States District Judge for the Eastern\nDistrict of Arkansas.\n\fmonths’ imprisonment. On appeal, he argues the district court incorrectly calculated\nthe advisory guideline range by applying a two-level increase under United States\nSentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 2K2.1(b)(4)(A) for possessing\na stolen firearm and U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection\nwith another felony offense. We affirm.\n\nI. Background\n\n On October 6, 2016, an arrest warrant was issued for Canamore by the Little\nRock District Court in Little Rock, Arkansas, for theft by receiving a stolen firearm.\nThe warrant came about because of a stolen pistol that had been pawned at\nPawnderosa Pawn Shop in Little Rock, Arkansas, on September 17, 2016, with\nCanamore’s name listed on the pawn ticket. The pawned pistol was a Smith &\nWesson air weight .38 caliber revolver.\n\n When the United States Marshals Service arrested Canamore at his mother’s\napartment, they conducted a search of Canamore's bedroom. A deputy found an\nArmi-Galesi .22 caliber semiautomatic pistol, model Brevetto, inside the pocket of\na pair of pants; six rounds of .22 caliber ammunition inside the pistol; 11 rounds of\nHornady .357 caliber ammunition; nine rounds of Hornady .45 caliber ammunition;\n4.3 grams of marijuana; and one drug scale. After advising Canamore of his Miranda\nrights, Canamore voluntarily spoke to law enforcement. Canamore admitted he\nowned the ammunition and marijuana found in his bedroom. He initially disclaimed\nknowledge of the pistol or pants where the pistol was found. Later in the interview,\nCanamore admitted he owned the pants where the pistol was found. He explained\nthat a female acquaintance placed the pistol in his pants pocket for safekeeping\nbecause she no longer needed it to protect herself since the person she had been in an\nabusive relationship with was in jail.\n\n\n\n\n -2-\n\f Canamore admitted to two prior felony convictions from Pulaski County\nCircuit Court that prohibited him from possessing a firearm or ammunition. The prior\noffenses included: (1) a conviction in 2013 for possession of a controlled substance\nwith the purpose to deliver, possession of drug paraphernalia, fleeing, and leaving\nscene of accident with injury or death; and (2) a conviction in 2015 for simultaneous\npossession of drugs and firearms, possession of a controlled substance with the\npurpose to deliver, possession of firearms by certain persons, and possession of drug\nparaphernalia.\n\n At sentencing, the district court determined the applicable base offense level\npursuant to the Guidelines was 24. Over Canamore’s objection, the court, after\nconsidering all relevant conduct, applied a two-level increase under U.S.S.G. §\n2K2.1(b)(4)(A) because a stolen firearm was involved and an additional four-level\nincrease under § 2K2.1(b)(6)(B) because the stolen firearm was possessed in\nconnection with another felony offense–theft by receiving under Arkansas law. After\nreducing the offense level by three points under U.S.S.G. § 3E1.1 for acceptance of\nresponsibility and timely notice of intent to plead guilty, the court determined\nCanamore’s total offense level was 27. Canamore was in criminal history category\nIV, yielding an advisory Guidelines range of 100 to 120 months.2\n\n The court found the advisory Guidelines range was “a little too harsh” in\nCanamore’s case. The court noted that imposing both Guidelines enhancements,\nwhile correct, was not “fair” and ought to be a consideration for a variance. The court\nbalanced Canamore’s criminal history against the particular circumstances of this\noffense. It noted that neither of the guns at issue were brandished, discharged, or\ndisplayed. The extra ammunition found was “odd” because it did not fit either of the\npistols or any other firearm found. The court explained that since the Guidelines\n\n\n 2\n The Guideline range was 100 to 125 months, but the offense carried a statutory\nmaximum imprisonment term of 120 months.\n\n -3-\n\fswept so broadly in defining relevant conduct, there must be some room for a court\nto evaluate “what actually happened and adjust the sentence accordingly.” After\nweighing these factors, the court granted Canamore’s motion for a variance and\nsentenced him to a term of 84 months’ imprisonment. Canamore timely appealed.\n\nII. Discussion\n\n Canamore argues the district court committed procedural error in calculating\nthe advisory Guidelines range by “double counting” when it applied enhancements\nunder both § 2K2.1(b)(4)(A) and § 2K2.1(b)(6)(B). We have explained: “‘[d]ouble\ncounting occurs when one part of the Guidelines is applied to increase a defendant's\npunishment on account of a kind of harm that has already been fully accounted for by\napplication of another part of the Guidelines,’ but double counting is permissible if\nthe Sentencing Commission so intended and each guideline section furthers an\nindependent purpose of sentencing.” United States v. Chapman, 614 F.3d 810, 812\n(8th Cir. 2010) (quoting and citing United States v. Hipenbecker, 115 F.3d 581, 583\n(8th Cir. 1997)). “We review the district court's application of the guidelines and the\ndouble-counting question de novo.” Id.\n\n Section 2K2.1(b)(6)(B) directs the court to increase a defendant's offense level\nby four if he “used or possessed any firearm or ammunition in connection with\nanother felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The commentary defines\n“another felony offense” as “any federal, state, or local offense, other than the\nexplosive or firearms possession or trafficking offense, punishable by imprisonment\nfor a term exceeding one year, regardless of whether a criminal charge was brought,\nor a conviction obtained.” Id. at comment. (n.14(C)). Theft by receiving stolen\nproperty was a felony under Arkansas law because the stolen property was a firearm.\nArk. Code Ann. § 5-36-106 (West 2013). The district court properly applied the\nenhancement.\n\n\n\n -4-\n\f The district court also applied a two-level enhancement set forth in §\n2K2.1(b)(4)(A) for possession of a stolen firearm. Canamore argues that double\ncounting occurred when this enhancement was applied in addition to the enhancement\nunder § 2K2.1(b)(6)(B). His argument is foreclosed by this Court’s precedent.\nUnited States v. Kenney, 283 F.3d 934, 937 (8th Cir. 2002) (finding no impermissible\ndouble counting when applying enhancements under both § 2K2.1(b)(4)(A) and §\n2K2.1(b)(5)3 because the subsections are conceptually separate). See United States\nv. Hedger, 354 F.3d 792, 795 (8th Cir. 2004) (relying, in part, on the decision in\nKenney, 283 F.3d 934, and affirming district court’s decision to apply both\nGuidelines enhancements for possession of a stolen firearm and possession of a\nfirearm in connection with “another felony offense”). We conclude the district court\ncommitted no procedural error when calculating Canamore’s advisory Guidelines\nrange.\n\n When a district court varies downward and sentences below a presumptively\nreasonable Guidelines range, “it is nearly inconceivable that the court abused its\ndiscretion in not varying downward still further.” United States v. Carr, 895 F.3d\n1083, 1091(8th Cir. 2018) (quoting United States v. Zauner, 688 F.3d 426, 429 (8th\nCir. 2012)). Nothing in the record suggests the district court abused its discretion by\nimposing an 84-month imprisonment term.\n\n\nIII. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n 3\n U.S.S.G. § 2K2.1(b)(6)(B) was formerly § 2K2.1(b)(5). The subsection was\nrenumbered in the 2006 version of the Guidelines.\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371152/", "author_raw": "PER CURIAM"}]}	SMITH	COLLOTON	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593899/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,901	UNITED STATES of America, Plaintiff-Appellant v. Joshimar Rodriguez LOZANO, Defendant-Appellee	United States v. Joshimar Rodriguez Lozano	2019-02-26	18-2265	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Smith, Colloton, Erickson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-2265\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Joshimar Rodriguez Lozano\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: January 14, 2019\n Filed: February 26, 2019\n ____________\n\nBefore SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.\n ____________\n\nERICKSON, Circuit Judge.\n\n Joshimar Rodriguez Lozano (“Rodriguez”) was indicted for being an illegal\nalien in possession of a firearm and ammunition, in violation of 18 U.S.C. §§\n922(g)(5) and 924(a)(2). Before trial, the district court granted Rodriguez’s motion\nto suppress, finding the encounter with law enforcement was not consensual at its\ninception and did not become consensual at any time before Rodriguez’s arrest.\n\fBecause we find the evidence in the record establishes Rodriguez’s encounter with\nlaw enforcement was consensual and Rodriguez consented to the pat-down search,\nwe reverse.\n\nI. Background\n\n On October 13, 2017, at approximately 1:18 a.m., Officer Brandon Condon, a\nWest Des Moines, Iowa, police officer, arrived at an apartment complex after\nreceiving a citizen’s report of suspicious activity involving “two black males walking\naround.” While driving through the parking areas of the complex, Officer Condon\nsaw Rodriguez and Rodriguez’s friend, M.A. Rodriguez, who is Hispanic, was in\nhigh school at the time. M.A. is a juvenile black male. M.A. testified that in April\n2018, he had recently turned 17 years old and will graduate from high school in 2020.\nM.A. and Rodriguez attend the same high school. The parties presented no direct\nevidence of Rodriguez’s age prior to the time the court entered its suppression order.1\n\n M.A. testified that Officer Condon parked his patrol car along the curb,\napproximately 15 to 20 feet behind Rodriguez and M.A., who were walking from\nM.A.’s apartment and heading toward Rodriguez’s apartment. M.A. identified the\nvehicle as a police car. Officer Condon exited his vehicle and approached Rodriguez\nand M.A. Officer Condon called their attention by saying something to the effect of\n\n 1\n Rodriguez has moved to strike the portions of the government’s brief and\nevidence in the record submitted after the suppression order was entered that contain\nevidence of Rodriguez’s age. Generally, we consider only evidentiary materials that\nwere before the district court at the time the decision was made. Von Kahl v. United\nStates, 242 F.3d 783, 788 (8th Cir. 2001) (“recogniz[ing] a ‘rarely exercised ... narrow\nexception’ to the general rule that the appellate record is limited to the record made\nbelow”). It is unnecessary for us to take judicial notice of Rodriguez’s age, as\nrequested by the government, because Rodriguez’s exact age is immaterial to\nresolution of the legal issues on appeal. The motion to strike and request to take\njudicial notice are denied as moot.\n\n -2-\n\f“Hey, guys.” M.A. interpreted Officer Condon’s words as a request to speak with\nthem. He testified he was unsure if he was free to walk away from the officer at that\npoint.\n\n Once Officer Condon, Rodriguez, and M.A. were in close proximity, Officer\nCondon asked them either what was going on or why they were out so late and also\nrequested their names. Rodriguez and M.A. provided their names. Officer Condon\ncommunicated their names back to the department. M.A. testified he believed the\nofficer appeared because of a report made by a neighbor. Rodriguez and M.A. told\nthe officer they were walking to Rodriguez’s apartment for a sleep over. The officer\nlearned where Rodriguez and M.A. went to school and they talked about the sports\nteams Rodriguez and M.A. were on. M.A. testified that Officer Condon was\ngenerally “friendly” and was not “overaggressive.” After the small talk, Officer\nCondon offered to give Rodriguez and M.A. a ride to Rodriguez’s apartment. Both\nRodriguez and M.A. accepted Officer Condon’s offer.\n\n Before allowing Rodriguez and M.A. in his patrol car, Officer Condon advised\nRodriguez and M.A. that he would have to pat them down for his safety. Neither\nRodriguez nor M.A. protested the pat-down. M.A. testified that Officer Condon told\nthem to lift their arms. Officer Condon testified Rodriguez lifted his arms without\nbeing asked to do so. Officer Condon noticed that Rodriguez moved his arms but was\nnot moving his feet very far apart to facilitate the pat-down of his lower body.\nOfficer Condon directed Rodriguez to spread his legs once or twice. After Rodriguez\ncomplied, Officer Condon discovered an item concealed in the groin area of\nRodriguez’s pants. Upon feeling the item, Rodriguez admitted it was a gun. Officer\nCondon retrieved the gun when it fell down Rodriguez’s pant leg. He then\nimmediately called for backup, ordered M.A. to get on the pavement, and handcuffed\nRodriguez. M.A. was questioned and released. Rodriguez was taken into custody.\n\n\n\n\n -3-\n\f Rodriguez was charged with being an illegal alien in possession of a firearm\nand ammunition. He filed a motion to suppress all evidence pertaining to the firearm,\nasserting Officer Condon’s contact with Rodriguez and M.A. constituted an\nunconstitutional seizure. The district court agreed and granted Rodriguez’s\nsuppression motion. The government filed this interlocutory appeal.\n\nII. Discussion\n\n “[T]he Fourth Amendment prohibits only unreasonable ‘seizures.’” United\nStates v. Grant, 696 F.3d 780, 784 (8th Cir. 2012). “A seizure occurs ‘if, in view of\nall of the circumstances surrounding the incident, a reasonable person would have\nbelieved that he was not free to leave.’” Id. (quoting INS v. Delgado, 466 U.S. 210,\n215 (1984)). Under this standard, “[o]nly when the officer, by means of physical\nforce or show of authority, has in some way restrained the liberty of a citizen may we\nconclude that a ‘seizure’ has occurred.” Id. (quoting Florida v. Bostick, 501 U.S. 429,\n434 (1991)). By contrast, “[s]o long as a reasonable person would feel free to\ndisregard the police and go about his business, the encounter is consensual, and no\nreasonable suspicion is required.” Id. (quoting Bostick, 501 U.S. at 434). “A\n‘consensual’ encounter between law enforcement and a citizen triggers no Fourth\nAmendment scrutiny.” Id.\n\n The burden of proving that an encounter was consensual rests with the\ngovernment. United States v. Garcia, 888 F.3d 1004, 1008 (8th Cir. 2018) (citing\nUnited States v. Aquino, 674 F.3d 918, 923 (8th Cir. 2012)). We review whether an\nencounter amounted to a seizure de novo. Grant, 696 F.3d at 784 (citing United\nStates v. McKines, 933 F.2d 1412, 1426 (8th Cir. 1991)).\n\n When reviewing the totality of the circumstances in the context of whether an\nencounter was consensual or if it ripened into a seizure, we have considered seven\nnon-exclusive factors:\n\n -4-\n\f [O]fficers positioning themselves in a way to limit the person's freedom\n of movement, the presence of several officers, the display of weapons\n by officers, physical touching, the use of language or intonation\n indicating compliance is necessary, the officer's retention of the person's\n property, or an officer's indication the person is the focus of a particular\n investigation.\n\nGarcia, 888 F.3d at 1009 (quoting Aquino, 674 F.3d at 923). Officer Condon was the\nonly responding officer to the suspicious activity report and did not position himself\nin a way to restrict Rodriguez’s or his friend’s movement. Officer Condon did not\ndraw his weapon, but rather called out to get the attention of Rodriguez and M.A.\nRodriguez and M.A. met up with the officer. Officer Condon asked for their names,\ninquired about what they were doing outside given the early morning hours and in\nresponse to the suspicious activity report, and made small talk. When Rodriguez and\nM.A. explained they were walking to Rodriguez’s apartment, Officer Condon\ninvestigated no further. M.A. confirmed the officer was friendly to them. Under\nthese circumstances, the encounter was consensual.\n\n The district court’s extensive and virtually exclusive focus on Rodriguez’s high\nschool age was in error. “The test for whether a person has been ‘seized’ within the\nmeaning of the Fourth Amendment is an ‘objective standard.’” Grant, 696 F.3d at\n784 (quoting Michigan v. Chesternut, 486 U.S. 567, 574 (1988)). Having an\nobjective standard helps to ensure Fourth Amendment protections do “not vary with\nthe state of mind of the particular individual being approached” and “allows the\npolice to determine in advance whether the conduct contemplated will implicate the\nFourth Amendment.” Id. at 784–85 (quoting Chesternut, 486 U.S. at 574). While we\nhave considered an individual’s age and mental ability when determining whether\nconsent is voluntary, United States v. Dunning, 666 F.3d 1158, 1165 (8th Cir. 2012)\n(quoting United States v. Quintero, 648 F.3d 660, 667 (8th Cir. 2011)), and the\nSupreme Court has considered age in the context of custodial interrogation, J.D.B.\nv. North Carolina, 564 U.S. 261 (2011), we have not applied any standard other than\n\n\n -5-\n\fan objective one that examines whether a reasonable person would have felt free to\nleave when determining whether a “seizure” occurred. Using that standard and the\nseven non-exclusive factors identified earlier, the district court erred in finding\nRodriguez and M.A. were seized within the meaning of the Fourth Amendment.\n\n After it was apparent Officer Condon had completed his investigation of the\nsuspicious activity report, Officer Condon offered Rodriguez and his friend a ride to\nRodriguez’s apartment. Only after Rodriguez and his friend accepted were they\nasked to submit to a safety pat-down to check for weapons. Rodriguez and M.A.\nagreed to the pat-down as a condition of getting a ride in the officer’s patrol car. We\nhave recognized it is not an unreasonable practice for a law enforcement officer to\n“conduct a pat-down search before a person enters his police car to protect officer\nsafety.” United States v. Espinoza, 885 F.3d 516, 524 (8th Cir. 2018).\n\n Offering Rodriguez and M.A. a ride did not turn what was a consensual\nencounter into a seizure or otherwise implicate the Fourth Amendment. Rodriguez\nneither verbally nor nonverbally protested the requested pat-down. M.A. testified he\nthought they responded to Officer Condon’s request by saying “yeah.” Rodriguez\nwillingly lifted his arms to permit Officer Condon to perform the pat-down. He did\nnot entirely resist Officer Condon’s requests to move his feet further apart.\nRodriguez never indicated, verbally or nonverbally, a desire to walk away from\nOfficer Condon. Rodriguez presented no evidence demonstrating his consent to the\npat-down was coerced or made under duress. The record establishes that the pat-\ndown search was an objectively reasonable measure to protect officer safety. The\ndistrict court erred in finding a Fourth Amendment violation.\n\nIII. Conclusion\n\n Accordingly, we reverse the district court’s grant of the motion to suppress.\n ______________________________\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371154/", "author_raw": "ERICKSON, Circuit Judge."}]}	SMITH	COLLOTON	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593901/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,903	UNITED STATES of America, Plaintiff - Appellee v. Darius Devon NICKELOUS, Defendant - Appellant	United States v. Darius Nickelous	2019-02-26	17-3750	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888060/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888061/", "author_raw": ""}, {"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3750\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Darius Devon Nickelous\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Waterloo\n ____________\n\n Submitted: November 15, 2018\n Filed: February 26, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Darius D. Nickelous was convicted of unlawfully possessing a firearm in\nviolation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), 922(g)(9), and 924(a)(2). The district\n\ncourt1 sentenced him to 120 months’ imprisonment. He appeals his conviction.\nHaving jurisdiction under 28 U.S.C. § 1291, this court affirms.\n\n I.\n\n Nickelous was convicted of unlawfully possessing a firearm after a shooting\nat a fraternity party. He claims the district court erred in denying his motion for\njudgment of acquittal because the evidence was insufficient. This court reviews de\nnovo the “denial of a motion for judgment of acquittal.” United States v. Roberts,\n881 F.3d, 1049, 1052 (8th Cir. 2018). The evidence is viewed “in the light most\nfavorable to the jury verdict and giving the verdict the benefit of all reasonable\ninferences.” United States v. Casteel, 663 F.3d 1013, 1019 (8th Cir. 2011). Reversal\nis appropriate “only if no reasonable jury could have found the defendant guilty\nbeyond a reasonable doubt.” Id.\n\n Nickelous stipulated to all elements of conviction except possession of a\nfirearm. See United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996) (to convict\n“under 18 U.S.C. § 922(g)(1), the government had to show beyond a reasonable doubt\nthat (1) he had been convicted of a felony; (2) he thereafter possessed a firearm; and\n(3) the firearm had traveled in or affected interstate commerce”). The government\nproduced as evidence of possession: (1) Nickelous admitted attending a fraternity\nparty and having an altercation there; (2) his former classmate testified she heard a\ngunshot at the party and then saw Nickelous, wearing a red sweatshirt, waving a\nsilver revolver; (3) two other people at the party—one a security guard and the other\na member of the Army National Guard—testified the shooter was wearing a red\nsweatshirt; (4) a police officer testified that multiple partygoers reported a shooting\nby a man wearing a red sweatshirt; (5) another officer, who found Nickelous 200 feet\n\n\n 1\n The Honorable Linda R. Reade, United States District Judge for the Northern\nDistrict of Iowa.\n\n -2-\n\nfrom the party (wearing a red sweatshirt), testified that he saw Nickelous drop a metal\nobject next to a pickup truck; (6) the officer testified that Nickelous refused to stop\nwhen ordered; (7) the officer found a silver revolver in the spot where Nickelous\ndropped the object; and (8) when officers apprehended Nickelous, his hand was\nbleeding, and he said he had “gotten his ass kicked at the party.”\n\n Nickelous questions his classmate’s credibility, arguing her testimony is biased\nand based on “assumptions and prejudices.” However, “[t]his court does not weigh\nthe credibility of the witnesses or the evidence. The jury has the sole responsibility\nto resolve conflicts or contradictions in testimony, and credibility determinations are\nresolved in favor of the verdict.” United States v. Aldridge, 664 F.3d 705, 715 (8th\nCir. 2011) (internal citation omitted).\n\n Nickelous also challenges the conviction because there was no physical\nevidence. But “there is sufficient evidence to support a conviction for felon in\npossession where a gun was immediately recovered from the location where the\ndefendant was observed dropping something.” United States v. Jefferson, 206 Fed.\nAppx. 654, 655 (8th Cir. 2006). See United States v. Bailey, 831 F.3d 1035, 1039\n(8th Cir. 2016) (holding evidence was sufficient where a firearm was recovered\n“along the route” of defendant’s flight within 45 minutes of his apprehension); United\nStates v. Light, 406 F.3d 995, 997-98 (8th Cir. 2005) (holding evidence was\nsufficient where police “recovered a gun from the alley” where defendant was\napprehended even though no one saw him drop it or “kept an eye on the spot where\nthe gun was found”).\n\n The district court did not err in finding the evidence sufficient to convict.\n\n\n\n\n -3-\n\n II.\n\n Nickelous argues the district court erred in excluding expert testimony on\neyewitness identification. “This court reviews the exclusion of expert testimony for\nabuse of discretion.” United States v. Martin, 391 F.3d 949, 954 (8th Cir. 2004).\n“Expert testimony is admissible only if the expert ‘is proposing to testify to (1)\nscientific knowledge that (2) will assist the trier of fact to understand or determine a\nfact in issue.’” Id., quoting Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592\n(1993); Fed. R. Evid. 702. The district court “has broad discretion” in balancing the\nreliability and probative value of evidence “against its prejudicial effect.” United\nStates v. Kime, 99 F.3d 870, 883 (8th Cir. 1996).\n\n Nickelous’s expert opined that there was “a high probability that without\nconscious intent” and “ no intentional bias,” the classmate “misconstrued some other\nobject like a phone as a gun.” The district court excluded the proposed testimony\nbecause it would not assist the trier of fact. “The evaluation of eyewitness testimony\nis for the jury alone. It is the exclusive province of the jury to determine the\nbelievability of a witness. . . . An expert is not permitted to offer an opinion as to the\nbelievability or truthfulness of a victim’s story.” Id. at 884 (internal quotation marks\nomitted). Defense counsel is “capable of exposing to the jury any potentially\nunreliable bases underlying” the eyewitness identification “through cross\nexamination.” Id.\n\n The district court also excluded the evidence because its limited relevance was\noutweighed by the danger of misleading the jury. As in Kime, “the district court\nproperly recognized the very real danger that the proffered expert testimony could\neither confuse the jury or cause it to substitute the expert’s credibility assessment for\nits own.” Id. The district court did not abuse its discretion in excluding the\ntestimony here, especially because the conviction did not rest solely on the\nclassmate’s eyewitness testimony. See United States v. Davis, 260 F.3d 965, 970 (8th\n\n -4-\n\nCir. 2001) (holding that, like here, the district court did not err by excluding an\neyewitness identification expert because this court is “especially hesitant to find an\nabuse of discretion unless the government’s case against the defendant rested\nexclusively on uncorroborated eyewitness testimony”).\n\n *******\n\n The judgment is affirmed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371156/", "author_raw": "BENTON, Circuit Judge."}, {"author": "ERICKSON, Circuit Judge, concurring", "type": "concurrence", "text": "ERICKSON, Circuit Judge, concurring.\n\n I concur in the Court’s opinion but write separately to note an area of concern.\nDuring the two decades that have elapsed since we decided United States v. Kime,\n99 F.3d 870 (8th Cir. 1996), significant developments have occurred in our\nunderstanding of memory science. The American Psychological Association has\ntaken the position in amicus filings that the reliability of witness memory can be\ninfluenced by many factors that may not be readily apparent to lay persons. See Brief\nfor American Psychological Association as Amicus Curiae Supporting Petitioner,\nPerry v. New Hampshire, 565 U.S. 228 (2012) (No. 10-8974), 2011 WL 3488994; see\nalso Brief for American Psychological Association as Amicus Curiae Supporting\nAppellant, Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) (No. 28 EAP 2011),\n2011 WL 7784187. Cognitive psychologists have reminded courts that the popular\nconception of memory is often incorrect, noting that when we “experience an\nimportant event, we do not simply record it in our memory as a videotape recorder\nwould.” Elizabeth F. Loftus, et al., Eyewitness Testimony: Civil and Criminal § 2-2,\nat 12 (4th ed. 2007). The relationship between eyewitness observations and the\nreliability of testimony in legal systems has been an area of intense interest in recent\nyears and, as the science develops, so too will our application of the science. See,\ne.g., United States v. Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (“It will not do to\nreply that jurors know from their daily lives that memory is fallible. The question that\n\n -5-\n\nsocial science can address is how fallible, and thus how deeply any given\nidentification should be discounted.”).\n\n I agree that, under the facts as developed in this case, the district court did not\nabuse its discretion by excluding Dr. Maclin’s testimony. I note, however, that some\nof our prior language in Kime may be overbroad in light of the developing science.\nDistrict judges would be well served to consider each case individually and not rush\nheadlong into the conclusion that proffered expert testimony should be excluded in\nall (or even most) cases because of its potential to confuse the jury, invade the\nprovince of the jury, or because defense counsel is capable of exposing to the jury any\npotentially unreliable bases underlying the eyewitness identification through cross\nexamination.\n\n Current scientific evidence reveals at least a controversy over whether or not\nthe usual legal process for rooting out witness unreliability is satisfactory in the\ncontext of eyewitness identifications without fully informing the jury of the nature of\nmemory—including through the use of expert testimony. As I believe the district\ncourt inquiry regarding admissibility in each case must be individualized and based\non the facts actually presented, I simply note that district courts should consider\ncarefully all of the circumstances before exercising their discretion to exclude such\nevidence. In this case, the district court developed a sufficient record to support its\nexercise of discretion. Under other circumstances, it might well be a better exercise\nof discretion to admit the proffered evidence.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371156/", "author_raw": "ERICKSON, Circuit Judge, concurring"}]}	BENTON	BEAM	ERICKSON	1	{}	4	0	2	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4593903/	Published	1	1	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,904	UNITED STATES of America Plaintiff - Appellee v. Beth GALLOWAY Defendant - Appellant	United States v. Beth Galloway	2019-02-26	18-1894	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "BEAM, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1894\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Beth Galloway\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Cedar Rapids\n ____________\n\n Submitted: November 15, 2018\n Filed: February 26, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nBEAM, Circuit Judge.\n\n A jury convicted Beth Galloway of mail fraud in violation of 18 U.S.C. § 1341;\nuse of fire and aid and abet the use of fire to commit a felony (here, mail fraud) in\nviolation of 18 U.S.C. §§ 2 and 844(h); and conspiracy to commit money laundering\nin violation of 18 U.S.C. §§ 1956(h) and 1956(a)(1)(B)(i). Following the verdict,\nGalloway filed motions for new trial and/or judgment of acquittal that the district\n\fcourt1 denied. Galloway appeals, challenging the sufficiency of the evidence on all\ncounts. For the reasons stated herein, we affirm.\n\nI. BACKGROUND\n\n \"We recite the facts in the light most favorable to the jury's verdict.\" United\nStates v. Daniel, 887 F.3d 350, 353 (8th Cir. 2018) (quoting United States v. Payne-\nOwens, 845 F.3d 868, 870 n.2 (8th Cir. 2017)).\n\n James Plower's house in Martelle, Iowa, burned down on July 25, 2013. At the\ntime, the house was empty because Plower had moved in with his then-girlfriend,\nGalloway, who lived in Olin, Iowa. The fire department determined the fire started\nin the back room of the basement near a light fixture. After the fire, authorities\nreceived a tip from an arson hotline and an investigation ensued, resulting in the\ninstant charges against Galloway.\n\n At trial, Plower testified as a cooperating witness for the government after\npleading guilty to mail fraud and use of fire to commit a felony for setting the fire that\nconsumed his home. He testified about his romantic relationship with Galloway and\nexplained his financial situation just prior to the fire, including that he was living\npaycheck to paycheck. He explained that the situation worsened when Galloway lost\nher job and that the couple discussed ways to get money, which included legitimate\nideas like redoing the house to sell, as well as the questionable idea to set the house\non fire. Plower said that the two talked about ways to accomplish the fire. He also\ntestified that Galloway knew about fire investigations because she had been a member\nof the Onslow fire department.\n\n\n\n 1\n The Honorable Leondard T. Strand, Chief Judge, United States District Court\nfor the Northern District of Iowa.\n\n -2-\n\f The jury heard testimony from Plower and others regarding multiple attempts\nto set fire to the house prior to Plower's successful attempt on July 25, 2013. Plower\ntestified that two weeks prior, Galloway left their house in the middle of the night,\ntold Plower she was \"going to the Martelle house,\" and when she returned she told\nhim that \"she couldn't get the house going.\" She told Plower she had tried to start the\nfire near the wall in the bathroom. Plower described another attempt a few days after\nthat where he went to the house and attempted to light the hunting room ceiling in the\nbasement with a propane torch. He started a small fire and went home to wait with\nGalloway for a radio alert, but none came because the fire apparently extinguished\nitself. It was Plower's next attempt, on July 25, that was successful. This time he set\nfire to the same spot in the basement, went home, and he and Galloway heard the fire\nreport over the radio. The two went to the Martelle house at that time.\n\n Both of Galloway's sons, Isaac and Geffrey, testified. Isaac was equivocal on\nthe stand when asked if he and his mother had attempted to start the house on fire and\nso a portion of his grand jury testimony was read to the jury. In that testimony, Isaac\ndescribed a night where his mother drove him to the house in the middle of the night\nand he entered and tried to set a fire near the basement stairwell but that it didn't\nwork. He said his mom \"probably\" knew he was going in with a lighter, she asked\n\"did you get it?\", when he got back in the car, to which he responded \"yeah, I think\nit's going.\" Isaac said that Galloway stated \"Jim [Plower] didn't need to know that I\nattempted to start the fire.\" A few days later Isaac said that he and his mom went\nback to make a second attempt, this time trying in a different location, with his mom\nasking if he was successful when he came out, and he was not. Galloway's son\nGeffrey also testified, stating that at one point after the fire Galloway advised him that\nPlower had started the house fire and that Galloway gave him instructions about what\nto do about his care and his siblings' care if she and Plower were arrested.\n\n Plower testified about filing the insurance claim and authenticated documents\nin court showing payments that were made. He received checks from Nationwide\n\n -3-\n\fthrough the mail and deposited them at the bank and paid off the mortgage on the\nhouse. Plower explained that he and Galloway used the rest of the insurance\nproceeds to pay their living expenses, that Galloway additionally gave a portion of\nthe proceeds to her father and that she also used some of the money herself to pay\nlegal fees related to a child custody case. Ultimately investigators caught up with\nPlower and he admitted his criminal activity without implicating Galloway. He did,\nhowever, tell Galloway that he would have to take out some money before they froze\nhis bank accounts and the two devised a plan to give the cash to a friend, Jean\nMcPherson, for safekeeping. McPherson confirmed that Galloway and Plower jointly\napproached her and asked her to hold onto some cash for them. She testified that\nPlower and Galloway told her that Plower was under investigation and that their\nassets were being frozen so they needed cash to live on. McPherson agreed and\nbelieved it was Galloway who handed her the money. Galloway and Plower\noccasionally came to get money from McPherson.\n\n An investigator with the Iowa State Fire Marshal's Office testified about his\ninvestigation of this matter. In addition to the primary origin in the basement, the\ninvestigator identified areas of secondary origin and a third origin point, both of\nwhich correlate with areas where Plower testified that Galloway attempted to start the\nfire, as well as the location of one of her son's unsuccessful attempts near the\nstairwell.\n\n Following deliberation, the jury convicted Galloway on all counts.\n\nII. DISCUSSION\n\n A. Standard of Review\n\n This court reviews the denial of a motion for judgment of acquittal de novo,\n\"evaluating the evidence in the light most favorable to the verdict and drawing all\n\n -4-\n\freasonable inferences in its favor.\" United States v. Almeida-Olivas, 865 F.3d 1060,\n1062 (8th Cir. 2017). The court's denial of Galloway's motion for new trial is\nreviewed for an abuse of discretion. United States v. Blakeney, 876 F.3d 1126, 1134\n(8th Cir. 2017).\n\n B. Sufficiency Arguments\n\n On appeal, Galloway argues as to each count that there was no evidence that\nshe knew that Plower's Martelle house was insured, that Plower intended to make any\nfraudulent insurance claims to the insurance company, or that Galloway herself\nparticipated in making any false insurance claim. She argues that Plower was the\nnamed insured, that the insurance check was mailed to a P.O. box that she did not\nhave access to, and that any attempts to burn the house that she coordinated were not\nconnected in any way to making an insurance claim. She additionally argues as to\ncount three particularly that there was no evidence that she participated in (or agreed\nto participate in) the financial transaction at issue, which involved the withdrawal of\n$10,000 from Wells Fargo by Plower. She reiterates that the evidence regarding the\ncouple's placement of the $10,000 with McPherson does not fall within the definition\nof \"financial transaction\" and nothing connects her to the bank withdrawal. Without\nthe evidence she highlights as missing, Galloway claims the government failed to\nprove the elements of the charges she faced and the district court should have granted\nher motion for judgment of acquittal or, alternatively, her new trial motion.\n\n Addressing Galloway's evidentiary arguments, the district court acknowledged\nthat the evidence in this matter was largely circumstantial and that much of the\nevidence came from co-conspirator testimony. The district court even recognized that\nthis case \"is closer than some,\" but held that despite the manner in which this\nevidence was presented, Galloway was not entitled to judgment of acquittal. We\nagree.\n\n\n -5-\n\f \"A jury is free to adopt any reasonable inference supported by the evidence and\nwe must view the facts and all reasonable inferences from those facts in a light most\nfavorable to the jury's verdict.\" United States v. Mack, 343 F.3d 929, 934 (8th Cir.\n2003). Here, reasonable jurors could conclude that Galloway was part of a scheme\nto set Plower's house on fire for the purpose of unlawfully obtaining insurance\nproceeds. As the district court held, the evidence wholly supports the inferences\narising from Plower's and Galloway's poor financial situation, Galloway's own\nindependent efforts to destroy the house by fire, the couple's discussions regarding\na plan to fix the situation, her acquiescence in Plower's actions each time he returned\nhome from his own attempts to burn the house, her conversations with Plower after\nthe fire, as well as her conversations and dealings with McPherson. Too, it is wholly\nreasonable to infer that Galloway's own efforts to burn the house demonstrated her\nknowledge and desire to profit or benefit from insurance money and for no other\nreason, such as simply trying to get rid of the house to save Plower time and money\nin fixing it up, which inference she advocates on appeal. Plower testified that once\nhe received the money, \"we\" used the money for paying bills and general living, and\nthat both he and Galloway had paid bills in the past. Galloway's desire to avoid\ndetection also supports an inference that she knew she was participating in a nefarious\nscheme and that it was something she did not want to get caught doing.\n\n Galloway's sufficiency arguments amount to claims that different inferences\nshould have been drawn from the evidence and she supplies various, legitimate facts\nin support of that claim. For example, she points to Plower's testimony that he did not\ndiscuss his efforts to set the house on fire with Galloway and that there is no\ntestimony connecting Galloway's efforts with son Isaac, to those of Plower. Galloway\npoints to the absence of direct evidence of her knowledge or any evidence of\nparticular steps in furtherance of a crime involving Plower's insurance policy. This\nshe claims to be the death knell of the proof necessary to establish that the fire was\nset for the purpose of committing insurance fraud. But that is not the lens through\nwhich we view this evidence. Adeptly choosing particular facts from the record and\n\n -6-\n\farguing that each, in isolation, does not support the larger inference made by the jury,\nis not the appropriate standard we employ on appeal. \"We cannot reject a jury's\nconclusions merely because the jury may have chosen the arguably weaker of two\ncontradictory, albeit reasonable, inferences.\" Id.\n\n The district court painstakingly reviewed the record in light of the elements of\nthe offenses charged, along with the jury instructions provided, and found as to each\nelement and count, that reasonable jurors could conclude that Galloway was guilty.\nWe likewise find that the inferences the jury gleaned from the evidence presented\nwere sufficiently strong to support the guilty verdicts beyond a reasonable doubt.\nUnited States v. Dale, 614 F.3d 942, 964 (8th Cir. 2010) (Arnold, J., concurring and\ndissenting in part) (cautioning that unless the inference a jury chooses to draw is\nsufficiently strong to support a guilty verdict beyond a reasonable doubt, a guilty\nverdict based on that inference cannot stand).\n\n For the reasons stated herein, we affirm2.\n ______________________________\n\n\n\n\n 2\n For the reasons that support our affirmation of the district court's denial of\nGalloway's motion for judgment of acquittal under a de novo standard of review, we\nfind the court did not abuse its discretion in denying her motion for new trial.\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371157/", "author_raw": "BEAM, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593904/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,906	Mark BITZAN Plaintiff - Appellant Gary L. Buck Plaintiff v. Jerry BARTRUFF, IDOC Director; John Baldwin, Former IDOC Director; Dorothy Faust, Religion Review Committee; Sheryl Dahm, Assistant IDOC Deputy Director; Jay Nelson, IDOC Religious Coordinator; Nick Ludwick, ISP Warden; Mark Roberts, ISP Deputy Warden; Rebecca Bowker, ISP Executive Officer; Mike Schierbrock, ISP A/W Treatment; Jill Johnson, ISP Administrative Assistant; Debbie Ferril, ISP Property; David DeGrange, ISP Investigator; Randy VanWye, ISP Investigator; Nikki Eaves, ISP Mailroom; Cynthia Phillips, ISP Mailroom; Berl Wilcox, ISP Segregation Unit Manager; Mike Eisnnicher, ISP Segregation Committee; Bradley Hoenig, ISP Segregation Committee Defendants - Appellees Statewide Religion Review Committee; Julie Johnson, ISP Former A/W Administration; Debbie Nichols ; Jane Doe, ISP Mailroom Defendants	Mark Bitzan v. Jerry Bartruff	2019-02-26	17-3391	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Kelly, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888062/", "author_raw": "PER CURIAM"}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888063/", "author_raw": ""}, {"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3391\n ___________________________\n\n Mark Bitzan\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n Gary L. Buck\n\n lllllllllllllllllllllPlaintiff\n\n v.\n\n Jerry Bartruff, IDOC Director; John Baldwin, Former IDOC Director; Dorothy\n Faust, Religion Review Committee; Sheryl Dahm, Assistant IDOC Deputy\nDirector; Jay Nelson, IDOC Religious Coordinator; Nick Ludwick, ISP Warden;\n Mark Roberts, ISP Deputy Warden; Rebecca Bowker, ISP Executive Officer;\n Mike Schierbrock, ISP A/W Treatment; Jill Johnson, ISP Administrative\nAssistant; Debbie Ferril, ISP Property; David DeGrange, ISP Investigator; Randy\n VanWye, ISP Investigator; Nikki Eaves, ISP Mailroom; Cynthia Phillips, ISP\n Mailroom; Berl Wilcox, ISP Segregation Unit Manager; Mike Eisnnicher, ISP\n Segregation Committee; Bradley Hoenig, ISP Segregation Committee\n\n lllllllllllllllllllllDefendants - Appellees\n\n Statewide Religion Review Committee; Julie Johnson, ISP Former A/W\n Administration; Debbie Nichols; Jane Doe, ISP Mailroom\n\n lllllllllllllllllllllDefendants\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Des Moines\n ____________\n\n Submitted: February 7, 2019\n Filed: February 26, 2019\n [Published]\n ____________\n\nBefore LOKEN, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Iowa inmate Mark Bitzan appeals following the district court’s grant of\nsummary judgment for defendants on his claims under 42 U.S.C. § 1983 and the\nReligious Land Use and Institutionalized Persons Act (RLUIPA). For the reasons\nstated below, we affirm in part, reverse in part, and remand the case for further\nproceedings.\n\n Initially, we find no abuse of discretion in the court’s order separating\nunrelated claims Bitzan initially raised from the claims in the underlying case. See\nMosley v. Gen. Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974) (applying an\nabuse of discretion standard of review). As to the claims at issue here, we agree with\nthe district court that Bitzan failed to administratively exhaust some claims, and that\nhe failed to show a violation of his rights under RLUIPA and the First Amendment\non the claims he exhausted. See Williams v. City of Carl Junction, 480 F.3d 871, 873\n(8th Cir. 2007) (engaging in de novo review of summary judgment order); Van Wyhe\nv. Reisch, 581 F.3d 639, 656-58 (8th Cir. 2009) (explaining that to establish a\nsubstantial burden under RLUIPA, plaintiff must show the government action\nsignificantly constrains his religious conduct or expression, meaningfully curtails his\nability to express adherence to his faith, or denies him reasonable opportunities to\nengage in activities that are fundamental to his religion; where inmate has not shown\nsubstantial burden under RLUIPA, claim fails under First Amendment as well).\n\n\n -2-\n\n We also agree the district court properly granted summary judgment on\nBitzan’s retaliation claims against VanWye, Nelson, Eaves, Dahm, and Bartruff,\nbecause Bitzan did not allege any facts connecting those defendants to the challenged\nactions. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (explaining\n§ 1983 liability requires causal link to, and direct responsibility for, alleged\ndeprivation of rights); Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010)\n(recognizing “prison supervisors . . . cannot be held liable under § 1983 on a theory\nof respondeat superior,” and may be liable only where their inaction amounts to\ndeliberate indifference to or tacit authorization of violative practices).\n\n We conclude that a genuine issue of material fact remained, however, as to\nBitzan’s retaliation claims against Schierbrock, DeGrange, Wilcox, Eisnnicher,\nBowker, Roberts, and Jill Johnson. Bitzan presented evidence these specific\ndefendants placed him in administrative segregation and prevented him from\nproviding his attorney with legal documents shortly after he filed a previous lawsuit\nagainst prison officials (including Schierbrock, DeGrange, Bowker, and Roberts), and\nthat they knew of the lawsuit. See Spencer v. Jackson Cty., 738 F.3d 907, 911-13 (8th\nCir. 2013) (to demonstrate retaliation, plaintiff must show he engaged in protected\nactivity, government official took action against him that would chill person of\nordinary firmness from continuing activity, and adverse action was motivated at least\nin part by exercise of protected activity; timing of housing demotion one day after\nfiling grievance was strong evidence of retaliation, and defendants offered no non-\nretaliatory motive). Defendants offered no evidence justifying the adverse actions.\nSee Santiago v. Blair, 707 F.3d 984, 993 (8th Cir. 2013) (defendant may defend\nretaliatory discipline claim by showing “some evidence” inmate actually committed\nrule violation).\n\n Rather than offering evidence justifying the adverse actions, the Appellees\nargued the actions Bitzan claims were retaliatory could not have been such since they\noccurred prior to the filing of the lawsuit. However, this is simply not the case. The\n\n -3-\n\nadministrative segregation occurred on or about May 7, 2014, and the lawsuit was\nfiled on April 23, 2014. The Appellees brief fails to even address the administrative\nsegregation despite Bitzan’s clear argument that it was in retaliation for the lawsuit.\nThus, an issue of material fact remains. We reverse the order of summary judgment\nand conclude that further proceedings are required on the retaliation claims against\nthese defendants.\n\n The judgment is affirmed in part and reversed in part, and the case is remanded\nfor further proceedings consistent with this opinion. We deny Bitzan’s motion to\nsupplement the record and his request for judicial notice, and dismiss the appeal as\nto defendant Ludwick due to his death.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371159/", "author_raw": "PER CURIAM"}, {"author": "LOKEN, Circuit Judge, concurring", "type": "concurrence", "text": "LOKEN, Circuit Judge, concurring:\n\n With regard to the remand of Mark Bitzan’s retaliation claims against certain\ndefendants, I question whether placing an inmate in administrative segregation,\ntypically a non-punitive classification, can be actionable retaliation for his recently\nfiling a lawsuit, and Bitzan’s claim that defendants prevented him from providing his\nattorney with legal documents relating to the other lawsuit should be litigated in that\nlawsuit, not in a separate lawsuit alleging retaliation. However, as defendants only\npresented the district court with an inaccurate temporal defense to the retaliation\nclaims, I have no choice but to concur in a remand for further proceedings on these\nclaims. I join the court’s opinion affirming dismissal of the remaining claims.\n ______________________________\n\n\n\n\n -4-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371159/", "author_raw": "LOKEN, Circuit Judge, concurring"}]}	LOKEN	KELLY	GRASZ	1	{}	4	0	2	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4593906/	Published	1	1	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,907	Benjamin William VANDEWARKER Plaintiff - Appellant v. CONTINENTAL RESOURCES, INC. Defendant - Appellee Wade Works LLC ; Palmer Oil, Inc., Formerly Known as Palmer Mfg. & Tank, Inc. Defendants	Benjamin William Vandewarker v. Continental Resources, Inc.	2019-02-26	17-3789	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Shepherd, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3789\n ___________________________\n\n Benjamin William Vandewarker\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Continental Resources, Inc.\n\n lllllllllllllllllllllDefendant - Appellee\n\nWade Works LLC; Palmer Oil, Inc., formerly known as Palmer Mfg. & Tank, Inc.\n\n lllllllllllllllllllllDefendants\n ____________\n\n Appeal from United States District Court\n for the District of North Dakota - Bismarck\n ____________\n\n Submitted: November 15, 2018\n Filed: February 26, 2019\n ____________\n\nBefore COLLOTON, SHEPHERD, and STRAS, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\f Benjamin Vandewarker, an employee of Great Western Resources (Great\nWestern), appeals the district court’s1 grant of summary judgment to Continental\nResources, Inc. (Continental), dismissing Vandewarker’s personal injury action\nagainst Continental. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.\n\n Continental hired Great Western as an independent contractor to gauge\nwastewater levels in holding tanks at its well sites in North Dakota. Vandewarker,\na semi-tractor truck operator employed by Great Western, emptied and hauled\nwastewater from the wells’ holding tanks. Additionally, he was tasked by Great\nWestern with the responsibility of conducting the actual gauging of the wastewater\nlevels. To do so, he climbed metal staircases adjacent to the tanks and measured the\ntanks’ water levels. On October 18, 2012, Vandewarker attempted to assess the water\nlevels at one of Continental’s well sites and fell 10-15 feet off one of the holding tank\nstaircases, due to a loose bolt and disconnected bracket. He fractured several ribs and\ninjured his back and shoulder.\n\n In June 2013, Vandewarker, a citizen of Oregon, filed this diversity suit for his\ninjuries against Continental, an Oklahoma company, claiming negligence, gross\nnegligence, and intentional infliction of emotional distress. Specifically,\nVandewarker alleged that Continental failed to properly install, inspect, and maintain\nthe staircase, thus negligently failing to provide to Vandewarker equipment that was\nsafe for its intended use and a safe environment in which to work. In deposition\ntestimony, he contended that Continental knew about the faulty condition of the stairs\nbecause he had told a Continental employee about it two days before his fall.\nContinental did not dispute this fact but emphasized in a summary judgment motion\nthat because Vandewarker was employed by its independent contractor, Great\n\n\n 1\n The Honorable Daniel L. Hovland, then United States District Judge for the\nDistrict of North Dakota, now Chief Judge, United States District Court for the\nDistrict of North Dakota.\n\n -2-\n\fWestern, Continental owed no duty to him. The district court granted summary\njudgment to Continental, concluding that Continental did not retain the right to\nexercise control over the work performed by its independent contractor, Great\nWestern, or Great Western’s employee, Vandewarker, nor did Continental exercise\nactual control over the work performed by Great Western and Vandewarker.\nTherefore, Continental owed no duty to Vandewarker. Vandewarker contests the\norder on several bases, arguing Continental either had direct liability for his injuries\nor at least assumed liability through its actions.\n\n “We review de novo a district court’s grant of summary judgment[,]” viewing\nthe “facts and inferences . . . in the light most favorable to the nonmoving party.”\nKiemele v. Soo Line R.R. Co., 93 F.3d 472, 474 (8th Cir. 1996). The moving party\nbears the burden of showing “that there is no genuine dispute as to any material fact\nand [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Where the\nrecord taken as a whole could not lead a rational trier of fact to find for the\nnonmoving party, there is no genuine issue for trial,” and summary judgment is\nappropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587\n(1986) (internal quotation marks omitted).\n\n Because this is a diversity action, we apply “the substantive law of the forum\nstate, here North Dakota.” N. Oil & Gas, Inc. v. Moen, 808 F.3d 373, 376 (8th Cir.\n2015). Under North Dakota law, “[n]egligence consists of a duty on the part of an\nallegedly negligent party to protect the plaintiff from injury, a failure to discharge the\nduty, and a resulting injury proximately caused by the breach of the duty.” Grewal\nv. N.D. Ass’n of Counties & Nw. Contracting, Inc., 2003 ND 156, ¶ 9, 670 N.W.2d\n336, 339 (citing Gullickson v. Torkelson Bros., Inc., 1999 ND 155, ¶ 7, 598 N.W.2d\n503, 505). “To establish actionable negligence, a plaintiff must show the existence\nof a duty by the defendant to protect the plaintiff from injury.” Pechtl v. Conoco,\nInc., 1997 ND 161, ¶ 7, 567 N.W.2d 813, 816 (citing Madler v. McKenzie Cnty., 467\n\n\n\n -3-\n\fN.W.2d 709, 711 (N.D. 1991)). Whether such a duty exists is typically “a preliminary\nquestion of law for the court.” Id.\n\n Under Restatement (Second) of Torts § 414, the employer of an independent\ncontractor may owe the independent contractor’s employee a duty through “an\nexpress contractual provision giving the employer the right to control the operative\ndetails of the independent contractor’s work, or by the employer’s actual exercise of\nretained control of the work.” Pechtl, 1997 ND 161, ¶ 11, 567 N.W.2d at 816. Here,\nVandewarker alleges that a duty arose in both ways. First, he suggests that the\nlanguage in the Master Service Contract between Continental and Great Western\nstating “work will [be] performed to the full and complete satisfaction of Continental”\nis sufficiently ambiguous to raise a question of fact about retained control. See\nMadler, 467 N.W.2d at 713. We disagree. The contract does not provide that\nContinental will supervise, inspect, or direct Great Western’s work. In fact, the\nexpress terms of the contract place the burden of safety on Great Western, stating:\n\n [Great Western] warrants that it is an expert in the work it will perform,\n that its employees and agents have been trained to follow all applicable\n laws, rules, and regulations and work safely, and that all of its\n equipment has been thoroughly tested and inspected and is safe,\n sufficient and free of any defects, latent or otherwise. [Great Western]\n acknowledges that Continental will rely upon these representations.\n\nBr. in Support of Motion for Summary Judgment, Ex. 1, Dist. Ct. Dkt. 33.\n\n Second, Vandewarker contends that Continental actually exercised sufficient\nretained control over Great Western’s work to create a duty to its employees.\nHowever, “merely providing equipment [to the employee of one’s independent\ncontractor] is not the kind of control that creates a duty.” Kristianson v. Flying J Oil\n& Gas, Inc., 553 N.W.2d 186, 190 (N.D. 1996). The employer must also “directly\nsupervise[] or control[] its use, or instruct[] the independent contractor’s employee\n\n -4-\n\fon use of the equipment.” Id. An employer’s “interest in safety at the jobsite” is\nsimilarly insufficient to impose a duty. Pechtl, 1997 ND 161, ¶ 17, 567 N.W.2d at\n817. Thus, while it is undisputed that Continental owned and provided the staircase,\nVandewarker has failed to demonstrate that Continental directly supervised his work\nor instructed him on the use of the well site equipment. Absent a premises liability\nframework, Continental’s control over the stairs and interest in safety at the well site\nare irrelevant; it is its lack of control over the “method, manner, and operative detail”\nof Vandewarker’s work that is dispositive. Fleck v. ANG Coal Gasification Co., 522\nN.W.2d 445, 448 (N.D. 1994). Because Continental did not control Vandewarker’s\nwork nor instruct him on the use of the equipment, it did not owe him a duty. Absent\na duty, Continental cannot be liable for negligence. See Pechtl, 1997 ND 161, ¶ 7,\n567 N.W.2d at 816. Therefore, the district court did not err in granting summary\njudgment to Continental.\n\n Vandewarker also argues that Continental’s failure to answer his amended\ncomplaints, filed after the summary judgment briefing, requires that all allegations in\nthose amended complaints be deemed admitted in his favor pursuant to Fed. R. Civ.\nP. 8(b)(6), making summary judgment improper. As Continental conceded at oral\nargument, it should have filed answers in response to the amended complaints.\nHowever, the parties presented extensive summary judgment briefing before the\ndistrict court, and Vandewarker could have supplemented that record with additional\narguments about Continental’s liability. Furthermore, because Vandewarker’s\namended complaints contained no new claims against Continental, Continental’s first\nanswer responded to all of the substantive allegations made against it. See Edelman\nv. Belco Title & Escrow, LLC, 754 F.3d 389, 395 (7th Cir. 2014) (holding that a\nparty’s failure to respond to a fourth amended complaint did not constitute an\nadmission of allegations when the party “had previously answered all of the\nallegations against it”). Furthermore, to the extent that Vandewarker makes a\npremises liability argument on appeal, we will not consider it, as that claim was not\n\n\n\n -5-\n\fraised before the district court, even in his amended complaints.2 See United States\nv. Oldham, 787 F.2d 454, 457 (8th Cir. 1986) (“Absent extraordinary circumstances,\nwe will not consider an issue raised for the first time on appeal.”). Throughout his\npleadings, Vandewarker attributed Continental’s alleged liability solely to its status\nas an employer of an independent contractor, not as a premises owner. Thus, we have\nreviewed only the summary judgment record addressed by the district court.\n\n We affirm.\n ______________________________\n\n\n\n\n 2\n Vandewarker’s amended complaints added other defendants as well as a claim\nfor products liability. Contrary to Vandewarker’s assertions at oral argument, no\nfacts were added to the complaints to suggest the addition of a premises liability\nclaim.\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371160/", "author_raw": "SHEPHERD, Circuit Judge."}]}	COLLOTON	SHEPHERD	STRAS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593907/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,502	UNITED STATES of America Plaintiff - Appellee v. Orlando James LASLEY Defendant - Appellant	United States v. Orlando Lasley	2019-02-27	17-3749	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Erickson, Beam, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3749\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Orlando James Lasley\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Nebraska\n ____________\n\n Submitted: October 24, 2018\n Filed: February 27, 2019\n [Published]\n ____________\n\nBefore ERICKSON, BEAM, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Orlando James Lasley appeals from his assault convictions, arguing that the\ndistrict court erred by admitting certain evidence and by constructively amending the\nindictment through a supplemental jury instruction. We agree the jury instruction\nconstructively amended the indictment, and therefore vacate Lasley’s conviction and\nremand for a new trial.\n\f I. Background\n\n Lasley and his girlfriend Marlena Griffin (“Marlena”) lived in the garage of his\nmother’s house on Skunk Hollow Road in Macy, Nebraska. Lasley and Marlena had\ndated for four to five years and lived together for a couple of years. On the night of\nJune 3, 2017, Marlena suffered an eye injury and a broken arm that she alleged Lasley\ninflicted on her. Lasley conceded that he inflicted the eye injury but disputed that he\nbroke her arm.\n\n In July 2017, a grand jury indicted Lasley on two counts: (1) assault resulting\nin serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153, and\n(2) assault of an intimate partner and dating partner resulting in substantial bodily\ninjury, in violation of 18 U.S.C. §§ 113(a)(7) and 1153.\n\n On September 11, 2017, Lasley filed a motion in limine, which in relevant part\nsought to entirely exclude testimony from Marlena’s sister Renee (because she was\nonly disclosed as a witness on September 7, 2017) or at least to exclude her testimony\nabout what a minor, J.B., told her, on the basis it was inadmissible hearsay and\nexcludable under Fed. R. Evid. 403. The district court denied the motion without\nprejudice to renewing the objection at trial.\n\n Trial began on September 12, 2017. Several witnesses testified about the night\nin question, but the only corroboration for Marlena’s version of events was her sister\nRenee’s recollection of a statement by J.B. Specifically, Renee recalled that J.B. said,\n“You need to go check on your sister at my grandma’s ‘cause my uncle was beating\nher up behind my grandma’s.” At a sidebar, Lasley objected to the evidence, and the\nGovernment argued it could demonstrate the statement was an excited utterance, or\nalternatively, could offer the statement as an explanation of “why [Renee] did what\nshe did at the residence.” The district court stated that after hearing Marlena’s\n\n -2-\n\ftestimony, it had no reason to believe that J.B. witnessed anything in the bedroom\nsuch that it would be an excited utterance, but the district court would admit the\nstatement as a basis for Renee’s later conduct with a limiting instruction to that effect.\nLasley objected to the latter ruling.\n\n During deliberations at the end of trial, the jury asked the district court: “The\njury would like to know does [sic] the face injury enough to convict on Both counts\nor is the arm one count and eye another count.” The district court answered, over\nLasley’s objection, “You may consider any injuries allegedly suffered by Marlena\nGriffin in connection with both counts.” After further deliberation, the jury found\nLasley guilty on both counts.\n\n Lasley timely appealed, asserting the district court erred in overruling both of\nhis objections discussed above. He seeks a new trial on the bases that (1) the district\ncourt’s answer to the jury’s question constructively amended the indictment and (2)\nJ.B.’s statement offered through Renee’s testimony was inadmissible hearsay that\nsubstantially affected the verdict.\n\n II. Analysis\n\nA. Constructive Amendment of the Indictment\n\n We first address Lasley’s challenge to the instruction given to the jury in\nresponse to its question regarding what injury or injuries it could consider. This court\nreviews jury instructions for abuse of discretion. United States v. Jenkins, 792 F.3d\n931, 935 (8th Cir. 2015) (reviewing supplemental jury instruction). “[C]onstitutional\nproblems may arise if a variance or a constructive amendment to the indictment\noccurs.” United States v. Starr, 533 F.3d 985, 996–97 (8th Cir. 2008). “A\nconstructive amendment occurs when the essential elements of the offense as charged\nin the indictment are altered in such a manner . . . that the jury is allowed to convict\n\n -3-\n\fthe defendant of an offense different from or in addition to the offenses charged in the\nindictment.” Id. at 997 (quoting United States v. Whirlwind Soldier, 499 F.3d 862,\n870 (8th Cir. 2007)). “In reviewing an appeal based on a claim of constructive\namendment, we consider whether the admission of evidence or the jury instructions\ncreated a substantial likelihood that the defendant was convicted of an uncharged\noffense.” Id. (quoting same).\n\n When the district court instructed the jury that it was not limited to the arm\ninjury, the district court constructively amended the indictment to include assault\ncounts based on the eye injury. Count I states Lasley “did kick and strike M.G.,\ncausing extreme pain and breaking M.G.’s arm, by causing an ulnar fracture.” ECF\nNo. 1 at 1. Count II similarly states Lasley “did kick and strike M.G., breaking\nM.G.’s arm, by causing an ulnar fracture.” Id. We do not fault either the jury or the\ndistrict court for the apparent confusion over the wording and structure of the\nindictment. However, based on the text of the indictment, and in light of Sixth\nAmendment concerns that would be implicated by affording the text a meaning\nbroader than its plain terms, we read both of these counts as specifying the arm injury.\nThus, when the jury asked, “does [sic] the face injury enough to convict on Both\ncounts or is the arm one count and eye another count,” the district court should have\ninstructed the jury that it needed to consider the arm injury on both counts. Instead,\nthe district court instructed, “You may consider any injuries allegedly suffered by\nMarlena Griffin in connection with both counts.” In fairness to the district court, the\ninstruction was likely proper on the statute charged. Because the indictment carried\nfurther limitations than the statute, though, the instruction constructively amended the\nindictment.\n\n We need not resolve whether constructive amendment is error per se or is\nreviewed for harmless error because we would find reversible error even if harmless\n\n\n\n\n -4-\n\ferror analysis were necessary.1 As the Fifth Circuit has explained, “[a general\nunanimity] instruction will be inadequate to protect the defendant’s constitutional\nright to a unanimous verdict where there exists a ‘genuine risk that the jury is\nconfused or that a conviction may occur as the result of different jurors concluding\nthat a defendant committed different acts.’” United States v. Holley, 942 F.2d 916,\n926 (5th Cir. 1991) (quoting United States v. Duncan, 850 F.2d 1104, 1114 (6th Cir.\n1988)). The jury’s question strongly suggests that it was confused about which\ninjuries were part of the indictment. By expanding the cognizable injuries for\nconviction, the district court allowed the jury to convict Lasley based on either (1) his\nadmitted conduct rather than the charged injury or (2) a mixture of both. Either result\nwas prejudicial to Lasley because his defense strategy was admitting he caused the\neye injury that was not charged in the indictment. Thus, reversal and a new trial are\nwarranted here.\n\n Because we are ordering a new trial, we will briefly address the other issue on\nappeal. See MDU Res. Grp. v. W.R. Grace & Co., 14 F.3d 1274, 1282 (8th Cir. 1994)\n(providing comments as guidance for a new trial); Henry v. Chloride, Inc., 809 F.2d\n1334, 1343 (8th Cir. 1987) (addressing secondary issue on appeal as guidance for a\nnew trial).\n\n\n\n\n 1\n This court has repeatedly said that “a constructive amendment is reversible\nerror per se,” United States v. Johnson, 719 F.3d 660, 668 (8th Cir. 2013) (quoting\nUnited States v. Farish, 535 F.3d 815, 822 (8th Cir. 2008)), although at least one\npanel has observed that the per se rule exists only in repeated dicta and may be\ninconsistent with Supreme Court precedent, United States v. Gill, 513 F.3d 836, 850\n(8th Cir. 2008). If constructive amendment is not error per se, then this court would\nreview it for harmless error. See Gill, 513 F.3d at 850.\n\n -5-\n\fB. Hearsay Testimony\n\n This court reviews evidentiary rulings for abuse of discretion. United States\nv. Lomas, 826 F.3d 1097, 1105 (8th Cir. 2016) (reviewing evidentiary rulings). In\naddition, “[a] district court’s error in admitting hearsay evidence is harmless if the\n‘error did not influence or had only a very slight influence on the verdict.’” Id.\n(quoting United States v. Burch, 809 F.3d 1041, 1045 (8th Cir. 2016)).\n\n J.B.’s statement was inadmissible hearsay because her actual words were\nunnecessary to prove why Renee went to her sister’s house and because the\nGovernment’s only plausible purpose for introducing the actual words was to prove\nthe truth of the matter asserted. We have previously found testimony to constitute\ninadmissible hearsay when “the prosecutor need not have introduced what was\nactually said” in order to prove the supposed fact at issue. United States v.\nBettelyoun, 892 F.2d 744, 746 (8th Cir. 1989). In Bettelyoun, a witness testified she\nheard on a radio at the police station that the defendant shot a female. Id. at 745. The\ndistrict court admitted the testimony to show the sequence of events. Id. This court\nstated that the content of the radio message was unnecessary to show the timing of\nevents and found that admission of the message was error. Id. at 746. Similarly, in\nthis case, a general explanation that J.B. told Renee to check on her sister would have\naccomplished the same purpose without unfair prejudice. Thus, we find the\nGovernment offered the evidence for the truth of the matter asserted despite the\nsupposed limited purpose.\n\n Whether admission of this hearsay evidence was harmless error is a close\nquestion. On two prior occasions, we have stated inadmissible hearsay recollecting\na victim’s prior statement was not harmless where it was the only evidence\ncorroborating the victim’s trial testimony. See United States v. Bercier, 506 F.3d 625,\n633 (8th Cir. 2007); United States v. Kenyon, 397 F.3d 1071, 1082 (8th Cir. 2005).\nThe hearsay evidence here recollected J.B.’s alleged statements, not Marlena’s,\n\n -6-\n\fdistinguishing those cases. The district court here also gave a limiting instruction on\nthe statement, and we presume juries follow instructions in a criminal case. United\nStates v. Levine, 477 F.3d 596, 604–05 (8th Cir. 2007). Lasley argues that we should\nadopt the rule from one of our sister circuits that a limiting instruction is unlikely to\nprotect against highly prejudicial information when that information went to the heart\nof the prosecution’s case. See United States v. Nelson, 725 F.3d 615, 622 (6th Cir.\n2013). We need not decide, however, whether to adopt the Sixth Circuit’s rule today\nbecause we are reversing on other grounds.\n\n III. Conclusion\n\n The supplemental instruction to the jury constructively amended the\nindictment. Consequently, we vacate Lasley’s conviction and remand the case for a\nnew trial.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371755/", "author_raw": "PER CURIAM"}]}	ERICKSON	BEAM	GRASZ	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594502/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,504	UNITED STATES of America, Plaintiff - Appellee v. Allen E. PEITHMAN, Jr., Defendant - Appellant United States of America, Plaintiff - Appellee v. Allen E. Peithman, Jr., Defendant - Appellant United States of America, Plaintiff - Appellee v. AEP Properties, L.L.C., Defendant - Appellant United States of America, Plaintiff - Appellee v. Sharon A. Elder, Defendant - Appellant	United States v. Allen Peithman, Jr.	2019-02-27	17-2721; 17-2722; 17-2723; 17-2768	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2721\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Allen E. Peithman, Jr.\n\n Defendant - Appellant\n ___________________________\n\n No. 17-2722\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Allen E. Peithman, Jr.\n\n Defendant - Appellant\n ___________________________\n\n No. 17-2723\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\f AEP Properties, L.L.C.\n\n Defendant - Appellant\n ___________________________\n\n No. 17-2768\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Sharon A. Elder\n\n Defendant - Appellant\n ____________\n\n Appeals from United States District Court\n for the District of Nebraska - Lincoln\n ____________\n\n Submitted: November 14, 2018\n Filed: February 27, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nERICKSON, Circuit Judge.\n\n In 2013–2014, law enforcement officers in Lincoln, Nebraska, began focused\ninvestigations on “smoke shops” selling “potpourri,” a product containing synthetic\nmarijuana that when consumed sometimes resulted in significant adverse health\neffects. “Dirt Cheap” owned by Allen E. Peithman, Jr. and “Island Smokes” owned\nby Sharon A. Elder were two of the shops investigated. Elder is Peithman’s mother.\n\n\n\n -2-\n\f Peithman, AEP Properties, and Elder1 were charged in a 14-count indictment.\nThe indictment contained conspiracy charges pertaining to the distribution of drug\nparaphernalia, the distribution of misbranded drugs, structuring more than $100,000\nin a 12-month period, mail fraud, the commission of money laundering as well as\nother charges relating to the maintenance of drug-involved premises and investment\nof illegal drug proceeds. The indictment also included forfeiture allegations.\nFollowing a 13-day trial, the jury acquitted Peithman, AEP Properties, and Elder on\nsome counts and convicted them on other counts. The district court sentenced\nPeithman to a total term of 115 months’ imprisonment for the convictions at issue in\nthis appeal2 and a consecutive 14-month term of imprisonment for violating his\nconditions of supervised release. Elder was sentenced to a total term of 63 months’\nimprisonment.3 AEP Properties was fined $450,000 and ordered to pay a special\nassessment in the amount of $400. A joint and several money judgment in the total\namount of $1,142,942.32 was ordered to be paid by Peithman, AEP Properties, Elder,\nand Cornerstone Plaza (a company Elder owned). The court imposed a fine in the\namount of $500,000 against both Peithman and Elder and ordered each to pay\n$5,186.56 in restitution.\n\n 1\n One other individual and one other corporation were also charged and\nconvicted of one or more offenses in this case, but they have not appealed.\n 2\n The entire sentence consisted of 115 months’ imprisonment on Counts IX\n(investment of illicit drug profits), XI (conspiracy to commit mail fraud), and XII\n(conspiracy to structure more than $100,000 in a 12-month period); and concurrent\nterms of 36 months on Counts VIII (conspiracy to distribute and possess with intent\nto distribute drug paraphernalia) and X (conspiracy to distribute misbranded drugs\nwith intent to defraud or mislead).\n 3\n The entire sentence consisted of 63 months’ imprisonment on Counts IX\n(investment of illicit drug profits), XI (conspiracy to commit mail fraud), and XII\n(conspiracy to structure more than $100,000 in a 12-month period); and concurrent\nterms of 36 months on Counts VIII (conspiracy to distribute and possess with intent\nto distribute drug paraphernalia) and X (conspiracy to distribute misbranded drugs\nwith intent to defraud or mislead).\n\n -3-\n\f Peithman raises two clusters of issues on appeal: (1) sufficiency of the\nevidence, and (2) various assertions of substantive and procedural errors. Peithman\ncontends the evidence was insufficient to sustain a conspiracy or that illegal profits\nwere invested. In his second barrage of claims, he argues the district court erred when\nit denied his motion for a new trial; when it ordered the money judgment to be joint\nand several and found equal culpability among the parties; when it failed to remove\na juror who was ill during the trial; when it calculated the Sentencing Guidelines; and\nwhen it failed to grant a more substantial downward variance.\n\n Elder also raises numerous challenges. She asserts that the evidence was\ninsufficient to sustain convictions for distributing misbranded drugs and structuring.\nShe joins Peithman’s claim that the money judgment was imposed in error, and argues\nthe district court erred by considering acquitted conduct at sentencing, by calculating\nthe Sentencing Guidelines range incorrectly, by refusing to allow a public\nauthority/entrapment by estoppel defense, and by imposing a substantively\nunreasonable sentence. We reverse that portion of the money judgment imposed\njointly and severally pursuant to 21 U.S.C. § 853 in the amount of $117,653.57 and\nremand for further proceedings consistent with this opinion, but affirm the convictions\nand sentences in all other respects.\n\nI. Background\n\n In late 2013, law enforcement officers, acting in an undercover capacity, began\nbuying products suspected of containing synthetic marijuana from smoke shops. Dirt\nCheap and Island Smokes were two of the targeted shops where undercover buys\noccurred in 2014 and 2015. Allen Peithman first began operating Dirt Cheap in 2008.\nDirt Cheap sold cigarettes, glass pipes, water pipes, t-shirts, e-cigarette products,\n“typical head shop stuff.” When the store first opened, Peithman sold “K2”, which\nis now referred to as “potpourri.” Peithman explained to law enforcement that “K2”\n\n -4-\n\fdid not contain any banned chemicals, did not cause consumers any problems, and\nwas in high demand because it did not show up on drug tests. According to Peithman,\n“every shop in town” began selling “K2” because the product had a very high profit.\n\n Peithman’s operation of Dirt Cheap was interrupted when he was incarcerated\non a federal firearm charge between March 2013 and June 2014. When Peithman was\noperating Dirt Cheap, he primarily relied on his wholesale suppliers to review the list\nof prohibited controlled substances and to insure that the “potpourri” complied with\nstate and federal controlled substances laws. He informed law enforcement that the\nvendors constantly changed the products they sold to keep ahead of the evolving law.\nThe “potpourri” sold at Dirt Cheap and Island Smokes was purchased primarily on the\nInternet with money orders. According to Peithman, the profit margins plummeted\nfor “potpourri” sold during the last few years of his business. Nonetheless, on a “good\nday” Dirt Cheap made around five thousand dollars. On a “bad day” it would be a\ncouple thousand dollars.\n\n During Peithman’s incarceration, Dirt Cheap was operated by Elder, although\nPeithman retained ownership of the name Dirt Cheap. In September 2014, Elder\nopened her own store, Island Smokes, because Peithman did not want to sell\n“potpourri” at Dirt Cheap any longer. Peithman purchased the property for the new\nstore from his uncle and leased it to his mother. After Island Smokes opened for\nbusiness, Dirt Cheap ceased selling “potpourri” but continued to sell what law\nenforcement consider drug paraphernalia as well as other items typically sold in\nsmoke shops. Island Smokes sold drug paraphernalia, “potpourri,” and other items\ntypically sold in smokes shops.\n\n Between February 2014 and August 2015, law enforcement officers conducted\nat least nine undercover buys. Several of the packets purchased were sent to a lab and\ntested positive under the United States Drug Enforcement Administration (“DEA”)\ndrug scheduling as a Schedule I controlled substance. In addition, in April 2014, law\n\n -5-\n\fenforcement obtained a search warrant for five boxes scheduled to be delivered to Dirt\nCheap based on information from a Federal Express driver that he had become ill due\nto an odor coming from packages. The boxes contained approximately 2,500 various\nfruit-flavored packets of “K2/potpourri” in three-gram and ten-gram amounts. At that\ntime, the packets tested negative for DEA Schedule I controlled substances.\n\n By September of 2014, the Lincoln police department was receiving an average\nof 20 to 30 calls per week about people hanging around Island Smokes and trespassing\nat an adjacent apartment complex. Over a four-day period in April 2015, law\nenforcement officers responded to at least seven medical emergencies involving\n“potpourri” bought at Island Smokes and smoked by the purchaser. Law enforcement\nencountered some of the overdose victims near Island Smokes and others they visited\nat the hospital.\n\n On April 23, 2015, law enforcement officers executed a search warrant at Island\nSmokes. One of the investigators noticed 100 pipes in a storage area behind the front\ncounter, which in his experience were commonly used to smoke methamphetamine.\nWhen questioned, Elder called them “oil burners.” When asked if Elder had aromatic\noil to burn in the pipes, she located two small vials from behind the checkout counter.\nElder reported to law enforcement that she generally kept 10 vials of oil per 100 pipes.\n\n\n\n Officers seized a “K2” packet and pipe discovered while searching the back\ngarage area, which upset Elder because she believed all the “K2/potpourri” had been\nremoved from the store. Elder told investigators during the search of her store that\neven though the “potpourri” packets were labeled “do not burn,” she knew a majority\nof her customers smoked “potpourri,” purportedly to relax. She also informed the\ninvestigators that her customers had requested a milder blend because her current and\nrecent stock was too strong and they did not like the effects.\n\n\n\n -6-\n\f In total, officers seized from Island Smokes more than 1,000 assorted glass\npipes, bongs, gas mask pipes, dugouts, one-hitter pipes in different colors, sizes, and\nstyles. Cigar wrappers and rolling papers were also seized. A total of 560 packets of\n“potpourri” were seized. Twelve sample “potpourri” packets from the inventory were\nsent to a lab for testing. Four of the 12 sample “potpourri” packets contained DEA\nSchedule I controlled substances. In addition, Food and Drug Administration\n(“FDA”) Special Agent Bradley Cooper opined at trial that the seized “potpourri”\npackets were misbranded because they did not comply with FDA labeling\nrequirements. He testified the packets were missing instructions for proper use,\nadequate warnings of potential adverse side effects, a list of active ingredients, a\ndescription of the contents, and the manufacturer’s name.\n\n On August 25, 2015, law enforcement officers executed a search warrant at Dirt\nCheap. Glass pipes, bongs, hookahs, water pipes, scales, grinders, dugouts, one-\nhitters, plastic baggies, rolling papers, screens, other types of drug paraphernalia, and\nbusiness records were seized. Law enforcement officers also obtained bank records\nfor Peithman and Elder and their business accounts. An operations officer for West\nGate Bank testified during the trial that multiple cash deposits in Peithman’s Dirt\nCheap business account would be made on a single day. For example, on December\n19, 2013, a $5,000 cash deposit was made at 10:12 a.m. using teller #54; a second\n$4,000 cash deposit was made to the same account at 2:20 p.m. at the same branch\nusing teller #56; and a third cash deposit of $1,292 was made 18 minutes later to the\nsame account at the same branch using teller #58.\n\n Between October 1, 2013, and May 11, 2015, a total of $1,100,957.65 in cash\nwas deposited into bank accounts belonging to Peithman, Elder, Cornerstone Plaza,\nand AEP Properties. An expert in the field of financial investigations testified at trial\nabout transactions indicative of structuring. He opined that the “even dollar” cash\ndeposits made to the various accounts belonging to businesses were indicative of an\nintent to structure because they are inconsistent with normal business activity. He\n\n -7-\n\ffurther opined that two cash deposits made on consecutive days in an amount slightly\nunder the $10,000 threshold daily limit might also be indicative of an intent to\nstructure. Similarly, multiple deposits on the same day, and sometimes less than 20\nminutes apart as occurred here, that totaled more than $10,000 for the day, but\nindividually were under the $10,000 limit was indicative of structuring. The expert\nalso testified that structuring could occur through multiple cash deposits on the same\nday at different banks in amounts less than $10,000 to avoid depositing more than\n$10,000 into any one account on a single day. According to the expert, the bank\nrecords presented at trial contained deposits indicative of structuring.\n\n After her arrest for charges related to this case, Elder stressed to law\nenforcement that she, not her son, was solely responsible for the sale of “potpourri”\nduring and after Peithman’s incarceration. Both Elder and Peithman asserted at trial\nthat Elder “went to great lengths” and used “due diligence” to make sure the products\nshe was selling were legal. They cited, as examples, Elder’s efforts to review the\nchemical sheets associated with the products, her discussions with the suppliers, her\nattendance at conferences, her consultation with a lawyer, and her decision to keep in\ncontact with law enforcement and follow their advice, such as when she was asked to\nstop selling a particular product because of the serious side effects people were\nexperiencing.\n\n After what the district court described as “a long, and very well fought jury\ntrial,” the jury convicted Peithman, Elder, and AEP Properties on some counts and\nacquitted on others. The jury found Peithman and Elder guilty of conspiracy to\ndistribute drug paraphernalia, conspiracy to commit mail fraud, investment of illicit\ndrug profits, conspiracy to distribute misbranded drugs, and conspiracy to structure\nfinancial transactions. Peithman was sentenced to a period of incarceration of 115\nmonths and Elder to a term of 63 months. The lengthier sentence for Peithman was\ndue primarily to his criminal history. Both sentences were at the high end of the\napplicable advisory Sentencing Guidelines range as calculated by the court.\n\n -8-\n\f The government sought forfeiture of specific property owned by Peithman,\nElder, and their companies. Both parties agreed to submit the issue of which property\nshould be forfeited to the jury. The jury agreed that the packets of “potpourri” and\nrelated drug paraphernalia together with one bank account were subject to forfeiture.\nThe jury was unable to reach a unanimous agreement on other specific items and\nfound other items should not be forfeited. The items the jury did not forfeit or could\nnot agree should be forfeited were the most valuable items of specific property.\n\n The government also sought a money judgment as part of the forfeiture\nallegations pertaining to the drug paraphernalia conviction, the mail fraud conviction,\nand the structuring conviction. That issue was decided by the court. The government\nrequested a money judgment in the amount of $2,248,728.56. After conducting a\nhearing on the issue, the court found, by a preponderance of the evidence, the\nappropriate money judgment was in the amount of $1,142,942.32, which\n“represent[ed] the wholesale costs of acquiring the drug paraphernalia and potpourri,\nthe sale of which generated the structuring.” The court specifically rejected the\n“proceeds theory” and was cautious to take steps to ensure double-counting did not\noccur. This timely appeal followed.\n\n Peithman has raised eight issues on appeal, challenging decisions made post-\ntrial. Elder has raised ten issues, challenging decisions made during the trial and post-\ntrial. We have carefully considered each of their arguments and in this opinion group\nrelated claims.\n\nII. Discussion\n\n 1. Peithman’s 18 U.S.C. § 3147 Conviction\n\n\n -9-\n\f 18 U.S.C. § 3147 increases the punishment for an offense committed while on\npretrial release. It is indisputable that the jury should not have been asked to\ndetermine Count XIV–that is, whether Peithman committed an offense under 18\nU.S.C. § 3147. Years ago, this Court held that § 3147 provides for an enhancement\nof a sentence, not a separate offense to be found by a jury. United States v.\nFeldhacker, 849 F.2d 293, 299 (8th Cir. 1988). The district court acknowledged the\nerror and took responsibility for it. The court vacated the conviction (Count XIV)\nbefore sentencing.\n\n Peithman asked for a remedy beyond vacating the conviction. He moved for\na new trial, arguing the entire trial was tainted by permitting evidence of his prior\nconviction and conditions of supervised release because Count XIV was submitted to\nthe jury. The court denied the new trial motion on the ground that the interviews\nPeithman and Elder provided to law enforcement would have been admitted into\nevidence regardless of Count XIV and no “conceivable prejudice” could exist since\nthere were 18 references during Peithman’s interview and five references during\nElder’s interview to the fact that Peithman had been in prison, was on supervised\nrelease, and was staying out to the smoke shop business to avoid trouble with his\nprobation officer.\n\n During the new trial motion and now on appeal, the parties characterize\nPeithman’s defense theory as one in which Peithman was not involved in unlawful\nactivity during the times alleged in the indictment because he was in jail during a\nmajority of that time and that following his release he consciously avoided the\nbusiness due to his supervised release conditions. Peithman argues on appeal that he\nis entitled to a new trial because this defense was thrust upon him when the\ngovernment wrongfully charged him under 18 U.S.C. § 3147 and then compounded\nthe error by introducing evidence that: (1) he had an unidentified prior federal\nconviction; (2) he was placed in the “high risk” supervised release case load; and (3)\n\n\n -10-\n\fhe was on supervision for three years and had to comply with identified terms and\nconditions during the time of supervision.\n\n We have reviewed the trial transcript. The defense arguments for acquittal\nadvanced during the trial are remarkably different than what has been portrayed on\nappeal. The prosecutor made the following assertions during her opening statement:\nPeithman initially ran Dirt Cheap and then was “gone for a while;” while he was gone,\nPeithman had given a power of attorney to Elder to run the store; and in the summer\nof 2014, Peithman went “ back to work” at Dirt Cheap while on “what’s called\nsupervised release from a prior matter.”\n\n Peithman’s attorney also mentioned during his opening statement Peithman’s\nabsence from the business. Counsel explained to the jury:\n\n And when this indictment happened in 2013, all the way up until June of\n 2014, he wasn’t even around. Now, he had started Dirt Cheap back in\n 2008 and ran it for a while until he left the state. So for the first part of\n this indictment, which on Count I starts from October 1st, 2013, and\n goes through April 23rd of 2015, Allen Peithman, AJ, as many of his\n friends call him, wasn’t even around for most of that. He had nothing to\n do with the business. Dirt Cheap was still -- was still going, operated by\n his mother, but he had nothing to do with the day-to-day operations.\n\nIt was at this point that Peithman’s theory of defense diverged from the prosecutor’s\ntheory. Peithman contended he was not guilty because he changed occupations.\nAccording to defense counsel, Peithman shifted from being a business owner to being\na landlord. Counsel clearly laid out Peithman’s intentions to the jury:\n\n AJ was going to get away from the head shop, and he was going to start\n investing in real estate. He was going to be a landlord.\n\n\n\n\n -11-\n\f The shop at Dirt Cheap, he was a landlord. He collected rent from Dirt\n Cheap. He collected rent from Island Smokes. Every now -- His mom\n ran the business, Shari. Every now and then, she’d need a favor from\n him, he is her son, to open the door sometimes when she couldn’t make\n it down to Dirt Cheap. Would he take the cash that she’d made that day\n and drop it in the bank? Yes.\n\n But AJ was not in some type of agreement or conspiracy with his\n mother. He was a landlord and he was a son, and that’s the evidence that\n you are going to hear.\n\n During closing argument, Peithman’s counsel reiterated comments he made\nduring his opening statement. Peithman argued to the jury that he was being singled\nout because of his family’s wealth. Counsel reiterated several times during his closing\nargument that Peithman was not in the smoke shop business; rather, he was a landlord.\nCounsel argued, in particular:\n\n The whole thing was a game of gotcha. Follow the money. It’s a game\n of gotcha because the Government wants their money. They want the\n Elder money. They could have shut this down at any time. They could\n have walked in there -- They had a positive lab for synthetic marijuana,\n I believe Officer Reynolds said, in summer of 2014, and they sat on it,\n because this case was bigger than this public health crisis that they now\n claim existed.\n ***\n AJ gets out of prison. His mom has taken over the business. She buys\n him a property, like a mom might do who has money. She had,\n essentially, bought the business for him, so it’s not odd that she bought\n the building and he was going to be the landlord. That doesn’t make him\n part of the business.\n\n Look, AJ had money. AJ was wealthy. He had that cash. He had those\n coins. He was making his own way.\n\n\n\n\n -12-\n\f Counsel’s defense theory and arguments advanced to the jury had little to do\nwith Peithman’s prison stay or supervised release conditions. He argued this case was\na “smoke-filled prosecution.” He argued it was a case of “gotcha.” Counsel argued\nthat the Peithman/Elder family had been targeted because of their wealth. He argued\nElder was innocent of the charges because she acted in good faith and did everything\nshe could to ensure the products she was selling were legal. Counsel argued Peithman\nwas out of the smoke shop business during the time frame alleged in the indictment\nbecause he was a landlord. He was in the business of buying and leasing real estate.\nA review of the trial transcript demonstrates that Peithman was not forced to, and he\ndid not, embrace a defense focused on the period of incarceration and conditions of\nsupervised release because Count XIV was submitted to the jury.\n\n Motions for a new trial are warranted only when “a serious miscarriage of\njustice may have occurred.” United States v. Braden, 844 F.3d 794, 801 (8th Cir.\n2016) (quoting United States v. Fetters, 698 F.3d 653, 656 (8th Cir. 2012)). An\nevidentiary error is harmless if it did not substantially influence the jury’s verdict.\nUnited States v. Aldridge, 664 F.3d 705, 714 (8th Cir. 2011) (quoting United States\nv. Henderson, 613 F.3d 1177, 1183 (8th Cir. 2010)). “Error may be harmless where\n‘the government introduced ample competent evidence from which the jury could\nconclude beyond a reasonable doubt that the defendant was guilty even without the\nevidence that should have been excluded.’” United States v. Cotton, 823 F.3d 430,\n435 (8th Cir. 2016) (quoting Aldridge, 664 F.3d at 714).\n\n The error in submitting to the jury a statutory sentencing enhancement is not\none we consider lightly. On this record, however, the error was harmless. Both\nPeithman and Elder discussed Peithman’s incarceration and supervised release status\nduring their interview with law enforcement officers. Even if Count XIV had not\nexisted, the court indicated it would have allowed those statements to be introduced\nat trial. Peithman has not persuaded us that he likely would have been successful in\n\n\n\n -13-\n\flimiting the statements at issue in the absence of Count XIV. Regardless of Count\nXIV, an explanation of Peithman’s absence from the smoke shop business during a\nportion of the relevant time period would have been before the jury. More importantly\nand contrary to Peithman’s argument, inclusion of evidence regarding Peithman’s\nprior conviction, period of incarceration, and conditions while on supervised release\ndid not force upon him a defense strategy that he did not select. In fact, he chose a\ndifferent strategy, which in the end did not persuade the jury. The district court did\nnot abuse its discretion by denying Peithman’s motion for a new trial.\n\n 2. Public Authority/Entrapment by Estoppel Defense\n\n Elder argues the district court erred by refusing to allow her to present a public\nauthority/entrapment by estoppel defense. We review the refusal to permit an\naffirmative defense de novo because it is question of law. United States v. Carlson,\n810 F.3d 544, 554 (8th Cir. 2016).\n\n Elder sought to present a public authority or entrapment by estoppel defense on\nthe ground that, after the inventory was seized during execution of the search warrant,\nthe city attorney provided her with a community protection agreement. The\nagreement requested Elder to voluntarily “cease and desist” selling “potpourri” and\nit set a signing deadline of May 15, 2015. The letter warned Elder that if she did not\nvoluntarily sign the agreement, the city would take “legal action in the very near\nfuture.” In seeking to present these affirmative defenses, Elder also relied on what she\ndescribed as a “close working relationship with law enforcement” with regard to what\nsubstances were legal or illegal as well as an unnamed police officer who she alleged\ntold her it was legal to sell synthetic cannabinoids in Lincoln.\n\n A “public authority defense requires a defendant to show that [s]he was\nengaged by a government official to participate in a covert activity.” United States\nv. Parker, 267 F.3d 839, 843 (8th Cir. 2001) (citing United States v. Achter, 52 F.3d\n\n -14-\n\f753, 755 (8th Cir. 1995)). There is no evidence that Elder relied on the authority of\na government official when operating the smoke shops at issue, nor is there evidence\nthat a federal law enforcement officer asked her to act in a manner in violation of\nfederal law. The district court properly declined to instruct the jury on the defense of\npublic authority.\n\n “Entrapment by estoppel arises when a government official tells a defendant\nthat certain conduct is legal, and the defendant commits what otherwise would be a\ncrime in reasonable reliance on the official representation.” Parker, 267 F.3d at 844\n(citing United States v. Benning, 248 F.3d 772, 775 (8th Cir. 2001)). In the letter to\nElder, the city attorney never told Elder her conduct was legal. The city made no\npromises regarding criminal prosecutions and specifically explained to Elder that an\nagreement by the city not to take legal action against the businesses selling\n“potpourri,” such as declaring them public nuisances, was not binding on federal,\nstate, or local prosecuting authorities. Elder has not shown a representation made by\nthe city was misleading, let alone intentionally misleading. In addition, Elder cannot\nshow reliance, particularly when the city attorney’s statements were made after\nexecution of the search warrant.\n\n Elder’s willingness to sign a community protection agreement, after contraband\nhad been seized, is not evidence that a government official told Elder that her conduct\nwas legal. Likewise, Elder’s willingness to work with law enforcement by removing\nparticularly potent “potpourri” packets for sale because consumers were overdosing\nand some almost died is not evidence that a government official told Elder the\nproducts were legal to sell. The district court properly declined to instruct the jury on\nthe defense of entrapment by estoppel.\n\n 3. Sufficiency of the Evidence\n\n\n\n\n -15-\n\f Peithman argues the evidence was insufficient to support the existence of a\nconspiracy or to prove the conviction for investment of illicit drug profits. Elder\nargues the evidence was insufficient to support the sale of misbranded drugs and the\nexistence of structuring of bank deposits.\n\n “We review challenges to the sufficiency of the evidence de novo.” United\nStates v. Johnson, 745 F.3d 866, 868–69 (8th Cir. 2014) (citing United States v.\nSullivan, 714 F.3d 1104, 1107 (8th Cir. 2013)). The evidence is to be viewed “in the\nlight most favorable to the guilty verdict, granting all reasonable inferences that are\nsupported by that evidence.” Id. at 869. In our review, we do not weigh the evidence\nor the credibility of the witnesses. United States v. Wiest, 596 F.3d 906, 910 (8th Cir.\n2010) (citing United States v. Honarvar, 477 F.3d 999, 1000 (8th Cir. 2007)). “We\nwill reverse a conviction only if no reasonable jury could have found the defendant\nguilty beyond a reasonable doubt.” Johnson, 745 F.3d at 869.\n\n Sufficient evidence was presented to sustain a jury finding that Peithman was\nmore than “merely associated with” Elder. Peithman and Elder ordered “potpourri”\nand drug paraphernalia from out-of-state suppliers. The products were shipped to Dirt\nCheap and Island Smokes using interstate common carriers such as FedEx and UPS.\nTypically, payments for the shipments were made with money orders and/or cashier’s\nchecks. Peithman and Elder attempted to disguise the amounts and cash proceeds\nfrom the sale of illegal products by making cash deposits using different tellers,\ndifferent branches of the same bank, different accounts, different banks, and by\npurchasing money orders at multiple agents to avoid the filing of currency transaction\nreports for deposits exceeding the $10,000 threshold as provided in 31 U.S.C. § 5313.\n\n\n\n Store employees testified about their knowledge and understanding of\nPeithman’s involvement in the businesses. It was clear that Peithman and Elder\n\n\n\n -16-\n\fcommunicated regularly about the businesses’ operation. Peithman accepted rent\npayments from Elder for Dirt Cheap and Island Smokes. Proceeds from the sale of\ndrug paraphernalia and misbranded drugs were used to purchase the building and real\nproperty where Island Smokes was located. Additional real estate and vehicles were\nalso purchased with money obtained through the sale of drug paraphernalia and\nmisbranded drugs. Peithman and Elder had knowledge that the “potpourri” being sold\nat Island Smokes and Dirt Cheap was being smoked by consumers. There was\nevidence presented at trial by way of expert testimony that the “potpourri” failed to\ncomply with FDA labeling requirements.\n\n The evidence overwhelmingly established the existence of a conspiracy, that\nillicit drug profits were used to purchase real and personal property, the sale of\nmisbranded drugs occurred during the time period alleged in the indictment, and\nstructuring took place to disguise the proceeds being realized from the sale of\nunlawful controlled substances and drug paraphernalia. Neither Peithman nor Elder\nhave presented a sufficient reason to disturb the jury’s findings.\n\n 4. Request to Remove Sick Juror\n\n Peithman argues the district court abused its discretion by refusing to substitute\nan alternate juror in place of a temporarily sick juror. See United States v. Blom, 242\nF.3d 799, 805 (8th Cir. 2001) (noting “most rulings on juror challenges are reviewed\non appeal for abuse of discretion). Juror No. 4 announced on the afternoon of the\nfourth day of trial that she was tired and unable to concentrate. She had been taking\nmedication for mononucleosis and was so tired in the evenings that she could not\nwork as a Mary Kay consultant. The court recessed the trial for the day to allow the\njuror to rest. On the next morning, the juror indicated she was feeling better. The\njudge asked the following question, which was approved by the lawyers: “If you were\nto remain as a juror, are you confident or not confident that you will be able to render\n\n\n\n -17-\n\fa thoughtful and attentive decision?” The juror responded: “I’m confident that I\nwould be.”\n\n In light of the juror’s representation that she would be able to be attentive for\nthe remainder of the trial and the lack of any indication the juror was unable to\nunderstand or appreciate the evidence that had been presented before she informed the\ncourt of her exhaustion, the district court did not abuse its discretion in denying the\nmotion to strike the juror and replace her with an alternate.\n\n 5. Money Judgment\n\n The indictment sought forfeiture under 31 U.S.C. § 5317(c); 18 U.S.C. §§\n981(a)(1)(C) and 982(a)(1); and 28 U.S.C. § 2461(c) of all real and personal property\nupon conviction of an offense listed in Counts XI through XIII. Peithman and Elder\neach were convicted on Counts XI (conspiracy to commit mail fraud) and XII\n(conspiracy to structure financial transactions). The indictment also sought forfeiture\nunder 21 U.S.C. § 853(a) of specified real property; vehicles; bank accounts; and\ncontrolled substances, drug paraphernalia, and/or misbranded drugs upon conviction\nof a controlled substance offense listed in Counts I through IX. Peithman and Elder\neach were convicted of Count VIII (conspiracy to distribute and possess with intent\nto distribute drug paraphernalia). The government further sought a money judgment\nas part of the forfeiture allegations for the convictions related to the sale of drug\nparaphernalia, mail fraud, and structuring.\n\n The court imposed a money judgment in the total amount of $1,142,942.32 plus\ninterest as provided by law. This amount consisted of the costs to purchase drug\nparaphernalia, which the court found totaled $117,653.57, plus the costs to purchase\n“potpourri” related to the mail fraud conviction, which the court found totaled\n$1,025,288.75.\n\n\n\n -18-\n\f Peithman and Elder have not challenged the government’s asserted statutory\nbases for forfeiture. Rather, they argue the money judgment imposed jointly and\nseverally against them (and their companies) should be vacated because it is\ninconsistent with the jury’s decision not to forfeit most of their property and contrary\nto the Supreme Court’s decision in Honeycutt v. United States, 137 S. Ct. 1626\n(2017). “[W]e review the district court’s factual findings for clear error but apply a\nde novo standard of review to [the issue] of whether or not those facts render the\n[asset] subject to forfeiture.” United States v. Dodge Caravan Grand SE/Sport Van,\nVIN No. 1B4GP44G2YB7884560, 387 F.3d 758, 761 (8th Cir. 2004) (citing United\nStates v. $84,615 in U.S. Currency, 379 F.3d 496, 501 (8th Cir. 2004)). “If the\ngovernment seeks a personal money judgment, the court must determine the amount\nof money that the defendant will be ordered to pay.” Fed. R. Crim. P. 32.2(b)(1)(A).\n“The court may make the determination based on evidence in the record, or on\nadditional evidence submitted by the defendant or evidence submitted by the\ngovernment in support of the motion for the entry of a judgment of forfeiture.” Fed.\nR. Crim. P. 32.2 advisory committee’s notes to the 2000 amendments. The\ngovernment bears the burden of proving by a preponderance of the evidence the\namount of the proceeds that should be subject to a personal money judgment. United\nStates v. Bieri, 21 F.3d 819, 822 (8th Cir. 1994).\n\n When reviewing money judgments, we have explained: “[T]he law does not\ndemand mathematical exactitude in calculating the proceeds subject to forfeiture.”\nUnited States v. Prather, 456 F. App’x 622, 626 (8th Cir. 2012) (quoting United States\nv. Roberts, 660 F.3d 149, 166 (2d Cir. 2011)). “Rather, district courts may use\ngeneral points of reference as a starting point for a forfeiture calculation and make\nreasonable extrapolations supported by a preponderance of the evidence.” Id.\n\n 21 U.S.C. § 853 provides that a defendant convicted of an enumerated\ncontrolled substance offense “shall forfeit to the United States . . . any property\n\n\n -19-\n\fconstituting, or derived from, any proceeds the person obtained, directly or indirectly,\nas a result of such violation.” In Honeycutt v. United States, the Supreme Court held\nthat forfeiture of property under § 853 is limited to property the defendant himself\nactually acquired as a result of the crime, and further held that joint and several\nliability was not appropriate for co-conspirators. 137 S. Ct. at 1632–33. In\nHoneycutt, the Court declined to hold a co-conspirator responsible for the entire\nforfeiture judgment when he only managed the sales and inventory, had no ownership\ninterest, and never obtained tainted property. Here, both Peithman and Elder had\nownership interests, worked together to operate the businesses, and shared in the\nproceeds obtained by engaging in criminal activity. While we find no clear error in\nthe court’s determination that Peithman and Elder were equally culpable, Honeycutt\nprecludes the district court from imposing joint and several liability for co-\nconspirators under § 853. We reverse that portion of the money judgment\n($117,653.57) imposed jointly and severally under § 853 relating to the conviction for\nconspiracy to distribute drug paraphernalia, and remand for proceedings consistent\nwith this opinion.\n\n The bulk of the total money judgment imposed related to the conviction for\nconspiracy to commit mail fraud regarding misbranded drugs (the “potpourri”).\nSection 981(a)(1)(C) provides for the forfeiture of “[a]ny property, real or personal,\nwhich constitutes or is derived from proceeds traceable to a violation of . . . any\noffense constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of\nthis title), or a conspiracy to commit such offense.” 18 U.S.C. § 981(a)(1)(C). “Mail\nfraud is a ‘specified unlawful activity.’” United States v. Adetiloye, 716 F.3d 1030,\n1041 (8th Cir. 2013) (citing 18 U.S.C. § 1956(c)(7)).\n\n\n We note a circuit split has developed on the question of whether Honeycutt\napplies to criminal forfeitures under § 981(a)(1)(C). Compare United States v.\nSexton, 894 F.3d 787, 798–99 (6th Cir. 2018) (holding that Honeycutt does not apply\n\n\n -20-\n\fto forfeiture under 18 U.S.C. § 981(a)(1)(C)), with United States v. Gjeli, 867 F.3d\n418, 427 (3d Cir. 2017) (finding that 18 U.S.C. § 981(a)(1)(C) is substantially the\nsame as the [statute] under consideration in Honeycutt”), and United States v. Carlyle,\n712 F. App’x 862, 864–65 (11th Cir. 2017) (per curiam) (remanding to the district\ncourt for a determination on whether Honeycutt governed wire fraud forfeiture under\n§ 981(a)(1)(C) and observing it appeared likely to apply). A review of the text and\nstructure of the two statutes reveals similarities and also notable differences. Unlike\nin 21 U.S.C. § 853, the term “proceeds” is defined in 18 U.S.C. § 981(a)(1)(C). And\nit is broadly defined in three different ways. Section 981(a)(2) provides distinct\ndefinitions for three categories of offenses. As relevant in this case, § 981(a)(2)(A)\ndefines proceeds as “property of any kind obtained directly or indirectly, as a result\nof the commission of the offense giving rise to forfeiture, and any property traceable\nthereto, and is not limited to the net gain or profit realized from the offense.” The two\nstatutes being compared are similar in a sense that they both use the verb “obtained,”\nwhich the Supreme Court placed great emphasis on when it limited forfeiture to\npersonal liability. It is also notable that the requirement that property be “traceable”\nto the commission of the offense as contained in § 981(a)(2)(A) is similar to § 853’s\nrequirement that the property be “tainted,” as described in Honeycutt.\n\n\n Turning to the differences between the statutes, a material distinction is the lack\nof a reference to a “person” in § 981. See Sexton, 894 F.3d at 799 (describing the\nphrase “the person obtained” as the “linchpin” of the Honeycutt decision). In contrast,\n§ 853 applies to property “the person obtained, directly or indirectly, as the result of”\nthe crime. The Supreme Court noted that § 853(a) “define[d] forfeitable property\nsolely in terms of personal possession or use.” 137 S. Ct. at 1632.\n\n\n The plain language under § 981 is broader than § 853 and less focused on\npersonal possession. As set forth in § 981(a)(2)(A), property is subject to forfeiture\nif it is “traceable” to the crime. The statute does not contain any language that\n\n\n -21-\n\frequires possession of the property by the defendant, either explicitly or implicitly.\nWe think these differences are significant. We join the Sixth Circuit and conclude that\nthe reasoning of Honeycutt is not applicable to forfeitures under 18 U.S.C. §\n981(a)(1)(C) and hold the district court did not err when imposing joint and several\nliability as to this portion of the money judgment.\n\n\n When determining the amount of the money judgment, the district court\nreasoned that by concentrating on the wholesale costs, the money judgment would be\nproportional to the gravity of Peithman’s and Elder’s offenses. We find no clear error\nin the district court’s decision to use the cost of acquiring the “potpourri,” nor in its\ncalculation of the appropriate amount which flowed from the conspiracy to commit\nmail fraud as to the sale of misbranded drugs. See Prather, 456 F. App’x at 625\n(affirming court’s imposition of a $41,600 money judgment based on the defendant’s\nstatement that he sold crack cocaine for 52 weeks and profited in the amount of $800\nper week). The fact that the jury did not forfeit Peithman’s real property, vehicles, or\nbank accounts does not render the court’s determination in error. Likewise, the fact\nthat the jury forfeited one of Elder’s bank accounts and found her corporation,\nCornerstone Plaza, guilty of five counts does not render imposition of joint and\nseveral liability under 18 U.S.C. § 981(a)(1)(C) in error. We affirm the district court’s\nimposition of a joint and several money judgment under § 981(a)(1)(C) in the amount\nof $1,025,288.75.\n\n\n 6. Sentencing Guidelines Calculations and Reasonableness of Sentences\n\n\n We review a district court’s factual findings pertaining to the calculation of the\napplicable United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range\nfor clear error and its application of the Guidelines de novo. United States v. Hairy\nChin, 850 F.3d 398, 402 (8th Cir. 2017) (quoting United States v. Barker, 556 F.3d\n\n\n\n -22-\n\f682, 689 (8th Cir. 2009)). If we find no error, we review the sentence for substantive\nreasonableness. Id.\n\n\n Both Peithman and Elder were sentenced within the Guidelines range as\ncalculated by the district court. A sentence within the Guidelines range is\npresumptively reasonable. United States v. Washington, 893 F.3d 1076, 1080 (8th\nCir. 2018) (quoting United States v. Meadows, 866 F.3d 913, 920 (8th Cir. 2017)).\nWe review a district court’s refusal to grant a defendant’s requested downward\nvariance for abuse of discretion. United States v. Jackson, 852 F.3d 764, 777 (8th Cir.\n2017). Likewise, we review the substantive reasonableness of a sentence under the\ndeferential abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455, 461\n(8th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). “A district\ncourt abuses its discretion when it ‘(1) fails to consider a relevant factor that should\nhave received significant weight’; (2) ‘gives significant weight to an improper or\nirrelevant factor’; or (3) ‘considers only the appropriate factors but in weighing those\nfactors commits a clear error of judgment.’” Id. (quoting United States v. Kane, 552\nF.3d 748, 752 (8th Cir. 2009)).\n\n\n A. Allen Peithman, Jr.’s Sentence\n\n\n Peithman argues the district court miscalculated his Guidelines range, erred in\nfailing to consider U.S.S.G. § 5G1.3(b), and abused its discretion by refusing to grant\na more substantial downward variance. The court determined Peithman’s base offense\nlevel was 24. The court applied a two-level enhancement under U.S.S.G. §\n2D1.1(b)(12) for maintaining a premises for the purpose of distributing a controlled\nsubstance. The court also applied a two-level increase for obstruction of justice\nbecause Peithman hid assets for the purpose of avoiding forfeiture. The concealed\nassets included “hundreds of thousands of dollars” and gold and silver.\n\n\n -23-\n\f After the increases, Peithman’s total offense level was 28. With eight criminal\nhistory points, Peithman was in criminal history category IV. These determinations\nresulted in an advisory Guidelines sentencing range of 110 to 137 months. The court\ncontemplated a sentence below the advisory Guidelines range for two reasons: (1)\nreluctance to rely on acquitted conduct; and (2) the manner in which the Guidelines\nconvert “potpourri” to a marijuana equivalent. The Guidelines utilize a ratio of 1\ngram of synthetic controlled substance to 167 grams of marijuana. The court noted\nits “dissatisfaction” with that ratio.\n\n\n The court varied downward two levels, which produced an advisory Guidelines\nsentencing range of 92 to 115 months. Peithman was sentenced to concurrent 115\nmonth terms of imprisonment on Counts IX, XI, and XII. The court imposed\nconcurrent sentences of 36 months on Counts VIII and X–offenses that carried a\nstatutory maximum imprisonment term of 36 months.\n\n\n Peithman asserts the court erred when it applied an enhancement under §\n2D1.1(b)(12) because the enhancement only applies to controlled substance offenses,\nnot paraphernalia offenses, and it improperly included acquitted conduct. We\ndisagree.\n\n\n The Guidelines explain that “[m]anufacturing or distributing a controlled\nsubstance need not be the sole purpose for which the premises was maintained, but\nmust be one of the defendant’s primary or principal uses for the premises, rather than\none of the defendant’s incidental or collateral uses for the premises.” U.S.S.G. §\n2D1.1 cmt. n.17. The evidence presented at trial established Peithman maintained a\nbusiness with the sale of “potpourri” as a primary use. According to Peithman’s own\nadmissions, “potpourri” was in high demand and was more profitable than other items\nsold at the store.\n\n\n -24-\n\f Peithman’s second assertion pertaining to consideration of acquitted conduct\nis foreclosed by our precedent. “Whether or not the district court relied on acquitted\nconduct, ‘[i]t is settled in this circuit ... that the Constitution does not preclude a\ndistrict court from considering acquitted conduct in sentencing a criminal defendant.’”\nUnited States v. Roberts, 881 F.3d 1049, 1053 (8th Cir. 2018) (quoting United States\nv. Papakee, 573 F.3d 569, 576 (8th Cir. 2009)). The district court did not err in\napplying the enhancement under U.S.S.G. § 2D1.1(b)(12).\n\n\n Peithman also argues the district court erred by applying an obstruction of\njustice enhancement under U.S.S.G. § 3C1.1. The court found Peithman had lied to\npretrial services when he failed to disclose money located in a safe. During the\nforfeiture portion of the trial, Peithman admitted he failed to report all assets to his\npretrial services officer in an attempt to keep the assets from being taken. Application\nnote 4(H) to § 3C1.1 states the enhancement applies to conduct that involves\n“providing materially false information to a probation officer in respect to a\npresentence or other investigation for the court.” Based on Peithman’s own\nadmission, the district court did not clearly error in applying a two-level increase for\nobstruction of justice.\n\n\n Peithman next claims the district court erred by refusing to give him a two-level\ndownward adjustment for being a minor participant. Peithman was not a minor\nparticipant in the offenses. The evidence in the record supports the district court’s\nfinding that Peithman was as culpable as Elder. There was sufficient evidence for a\njury to find Peithman understood the scope and structure of the criminal activity and\nparticipated in it. Peithman was ineligible for a minor-role adjustment.\n\n\n\n\n -25-\n\f Peithman next argues the district court erred in cross-referencing the controlled\nsubstance table. U.S.S.G. § 2D1.7 is entitled “Unlawful Sale or Transportation of\nDrug Paraphernalia; Attempt or Conspiracy.” Subsection (b) of § 2D1.7 provides for\na cross-reference if the offense involved a controlled substance. Peithman was\ninvolved in the sale of misbranded drugs that tested positive for a DEA Schedule I\ncontrolled substance. The cross-reference plainly applied.\n\n\n Peithman’s last claim of error regarding the Guidelines calculation pertains to\nthe structuring conviction. Peithman contends the amount that should have been\nattributed to him is less than $550,000 due to the period of time he was incarcerated.\nThe structuring conviction played no role in sentencing Peithman because it was\ngrouped with the other convictions. When offenses are grouped, the Guidelines range\nthat produces the highest offense level is used. U.S.S.G. § 3D1.3(b). In this case, it\nwas the conviction for possession and distribution of drug paraphernalia that produced\nthe highest offense level relied on by the court at sentencing. Finding no calculation\nerror for that conviction, any error with regard to the structuring conviction is\nharmless.\n\n\n Peithman argues in the alternative that if the district court calculated the\nGuidelines range correctly, the district court erred by not granting a more substantial\ndownward variance. Peithman asserts the variance the district court granted “was\nmore form over substance” since the sentence fell within the original Guidelines range\nof 110 to 137 months. We find the district court acted within its discretion when it\nvaried downward and then imposed a sentence within the reduced Guidelines range\nthat happened to also be within the initial Guidelines range.\n\n\n Finally, Peithman argues the court’s decision to impose a consecutive sentence\non the revocation matter was in error under U.S.S.G. § 5G1.3(b). The district court\n\n\n -26-\n\falso found it was not going to account for the six month state probation revocation\nsentence because “they’re two separate crimes.” U.S.S.G. § 7B1.3(f) states:\n\n\n Any term of imprisonment imposed upon the revocation of . . .\n supervised release shall be ordered to be served consecutively to any\n sentence of imprisonment that the defendant is serving, whether or not\n the sentence of imprisonment being served resulted from the conduct that\n is the basis of the revocation of probation or supervised release.\n\n\n Section 5G1.3(b) gives the court the authority to adjust a sentence if the court\ndetermines a period of imprisonment served on an undischarged imprisonment term\nwill not be credited by the Bureau of Prisons and the sentence for the instant offense\nis ordered to run concurrently to the remainder of the undischarged term of\nimprisonment. “[S]ection 5G1.3(b)(2) does not prohibit the district court from\nexercising its statutory authority to impose a consecutive sentence.” United States v.\nBenson, 888 F.3d 1017, 1019 (8th Cir. 2018) (citing United States v. Martinez\nRodriguez, 508 F. App’x 573, 575 (8th Cir. 2013)). The district court did not err\nwhen it imposed a consecutive sentence on the federal revocation case. Further, the\ndistrict court acted within its discretion when it declined to account for the six month\nstate sentence because it found they were separate crimes. See United States v.\nMathis, 451 F.3d 939, 941 (8th Cir. 2006) (noting the district court’s wide discretion\nto run a federal sentence consecutive to an undischarged state offense).\n\n\n Upon our careful review of the record, we find no error in the calculation of the\nGuidelines range in Peithman’s case. The district court did not abuse its discretion\nwhen it imposed the sentences it did.\n\n\n\n\n -27-\n\f B. Sharon Elder’s Sentence\n\n Elder argues the district court erred when it based its sentence upon acquitted\nconduct, in determining the applicable base offense level, in failing to depart or vary\nfrom the Guidelines, and in imposing a substantively unreasonable sentence. The\ndistrict court found Elder’s base offense level was 24, using the cross-reference to\nU.S.S.G. § 2D1.1(a)(5) and the drug quantity table. Like Peithman, the court applied\na two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises\nfor the purpose of distributing a controlled substance. A total offense level of 26 and\ncriminal history category I resulted in an advisory Guidelines sentencing range of 63\nto 78 months. The court treated Elder similarly to Peithman and varied two-levels\ndownward for the same reasons it did in Peithman’s case, as discussed in the previous\nsubsection. Elder’s advisory Guidelines sentencing range was 51 to 63 months. Elder\nwas sentenced to concurrent 63 month terms of imprisonment on Counts IX, XI, and\nXII and concurrent 36 months terms on Counts VIII and X–offenses that carried a\nstatutory maximum imprisonment term of 36 months.\n\n For the same reasons that applied in Peithman’s case, as discussed in the\nprevious subsection, Elder’s challenges to the cross-reference and use of the drug\nquantity table are without merit. Although the jury acquitted Elder of the substantive\noffenses for distribution of controlled substances, the court may rely on acquitted\nconduct at sentencing. Roberts, 881 F.3d at 1053. The evidence presented at trial\nestablished that the primary sale of goods at Island Smokes was the sale of\n“potpourri.” The court properly applied § 2D1.1(b)(12).\n\n Elder’s within-Guidelines range sentence is presumptively reasonable.\nWashington, 893 F.3d at 1080. We find no error by the district court in calculating\nthe Guidelines or applying the Guidelines in Elder’s case. We find the district court\ndid not abuse its discretion when it refused to grant a more substantial downward\n\n\n\n -28-\n\fvariance or a downward departure. Elder suggests her sentence is substantively\nunreasonable, but she cannot point to anything in particular to rebut the presumption\nof reasonableness to a within-Guidelines-range sentence like this one. Her age,\nalleged poor health, hardship caused by incarceration, and conduct giving rise to the\nconvictions were all considerations brought to the district court’s attention. The\ndistrict court did not err or abuse its discretion when sentencing Elder.\n\nIII. Conclusion\n\n For the foregoing reasons, we reverse the money judgment imposed jointly and\nseverally under 21 U.S.C. § 853 in the amount of $117,653.57 and remand for further\nproceedings consistent with this opinion, but affirm the convictions and sentences in\nall other respects.\n ______________________________\n\n\n\n\n -29-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371757/", "author_raw": "ERICKSON, Circuit Judge."}]}	BENTON	BEAM	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594504/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,506	Mark W. DUBUQUE Plaintiff - Appellant v. the BOEING COMPANY Defendant - Appellee	Mark Dubuque v. The Boeing Company	2019-02-27	18-1945	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Melloy, Kelly", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1945\n ___________________________\n\n Mark W. Dubuque\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n The Boeing Company\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: January 17, 2019\n Filed: February 27, 2019\n ____________\n\nBefore BENTON, MELLOY, and KELLY, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n\n Mark W. Dubuque was an at-will employee at The Boeing Company with\nSpecial Action Program (SAP) clearances and access for his classified work. After\nthe Air Force’s Office of Special Investigations temporarily suspended his SAP\naccess, Boeing tried to inform Dubuque that his SAP access was terminated in a SAP\nfacility. This process is called “debriefing.” Dubuque refused requests to debrief.\n\fBoeing terminated him. Dubuque sued Boeing, claiming wrongful discharge in\nviolation of public policy. The district court1 denied Boeing’s motion to dismiss for\nlack of subject matter jurisdiction, but granted dismissal under Rule 12(b)(6).\nDubuque v. Boeing Co., 325 F.R.D. 296 (E.D. Mo. 2018). Dubuque appeals.\n\n\n Boeing contends that the district court lacked subject matter jurisdiction over\nDubuque’s claim because it is a nonjusticiable political question. Courts lack\njurisdiction to review the merits of an executive’s decision to grant or deny a security\nclearance because it is a “sensitive and inherently discretionary judgment call . . .\ncommitted by law to the appropriate agency of the Executive Branch.” Dep’t of Navy\nv. Egan, 484 U.S. 518, 527-28 (1988). However, “not all claims arising from security\nclearance revocations violate separation of powers or involve political questions.”\nStehney v. Perry, 101 F.3d 925, 932 (3d Cir. 1996). See, e.g., Zeinali v. Raytheon\nCo., 636 F.3d 544, 547, 552 (9th Cir. 2011) (jurisdiction over discriminatory\ntermination claim where employee was terminated after the Department of Defense\ndenied his security clearance); Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008)\n(jurisdiction over discrimination claim under mixed-motive theory because the case\ndid “not necessarily require consideration of the merits of a security clearance\ndecision”). Noting that Dubuque’s claim does not challenge the merits of the\nsecurity-clearance decision, the district court correctly concluded it had subject matter\njurisdiction over Dubuque’s wrongful termination claim. See 8th Cir. R. 47B.\n\n\n The district court also properly dismissed Dubuque’s wrongful discharge claim.\nGenerally, an “at-will employee has no cause of action for wrongful discharge.”\nFleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 91 (Mo. banc 2010).\n\n\n 1\n The Honorable Charles A. Shaw, United States District Judge for the\nEastern District of Missouri.\n\n\n -2-\n\fHowever, “[a]n at-will employee may not be terminated . . . for refusing to violate the\nlaw or any well-established and clear mandate of public policy . . . .” Id. at 92. The\npublic policy exception is “narrow.” Id. at 93. After de novo review, this court\nagrees with the district court that Dubuque failed to state a claim upon which relief\ncan be granted because the manuals he cites do not clearly prohibit him from being\ndebriefed in a SAP facility. See Margiotta v. Christian Hosp. NE. NW., 315 S.W.3d\n342, 347 (Mo. banc. 2010) (“The pertinent inquiry here is whether the authority\nclearly prohibits the conduct at issue in the action.”). See generally 8th Cir. R. 47B.\n\n\n *******\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -3-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371759/", "author_raw": "BENTON, Circuit Judge."}]}	BENTON	MELLOY	KELLY	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594506/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,507	Essie PESCHONG; D.P.; E.P.P.; E.C.P., Minors, by and Through Their Parent and Natural Guardian, Essie Peschong Plaintiffs - Appellants v. CHILDREN'S HEALTHCARE, Doing Business as Children's Hospitals and Clinics of Minnesota; Alice Swenson, M.D. Defendants - Appellees	Essie Peschong v. Children's Healthcare	2019-02-27	17-2828	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Arnold, Kelly", "parties": "", "opinions": [{"author": "WOLLMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2828\n ___________________________\n\n Essie Peschong; D.P.; E.P.P.; E.C.P., minors, by and through their parent and\n natural guardian, Essie Peschong\n\n lllllllllllllllllllllPlaintiffs - Appellants\n\n v.\n\n Children's Healthcare, doing business as Children's Hospitals and Clinics of\n Minnesota; Alice Swenson, M.D.\n\n lllllllllllllllllllllDefendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota - Minneapolis\n ____________\n\n Submitted: June 14, 2018\n Filed: February 27, 2019\n ____________\n\nBefore WOLLMAN, ARNOLD, and KELLY, Circuit Judges.\n ____________\n\nWOLLMAN, Circuit Judge.\n\f Essie Peschong and her three minor children, D.P., E.P.P., and E.C.P.,\n(collectively, the Peschongs) appeal the district court’s1 dismissal of their complaint\nagainst Children’s Healthcare and Alice Swenson, M.D., arguing that the district\ncourt erred in applying the doctrine of collateral estoppel to their claims. We affirm.2\n\n I.\n\n Since his birth in 2004, D.P. has undergone numerous medical examinations,\ntests, and surgeries for various conditions. Children’s Healthcare provided D.P.’s\nprimary care from 2004 through 2007. As part of D.P.’s medical care, he received\nsupplemental oxygen and used a wheelchair. By 2015, D.P. had undergone two\nadenoidectomies, a tonsillectomy, a turbinectomy, numerous laryngoscopies and\nbronchoscopies, and a half dozen sleep studies. D.P. had also spent forty-one days\nof his life hospitalized due to breathing difficulties and had been treated in the\nemergency room nine times for reactive airway disease and pneumonia.\n\n In 2015, Nurse Practitioner Cindy Brady contacted Dr. Swenson with concerns\nthat D.P. was suffering from medical child abuse. Dr. Swenson reviewed D.P.’s\nmedical records and concluded in a report (the report, or Swenson Report) that Essie\nPeschong “appears to be misrepresenting [D.P.’s] medical conditions in order to\nobtain care that D.P. does not need and that may, in fact, be harmful.” Swenson\nReport 4. Dr. Swenson submitted the report on June 22, 2015, to Hennepin County\n\n 1\n The Honorable David S. Doty, United States District Judge for the District of\nMinnesota.\n 2\n We requested on our own motion a copy of the trial transcript of the state court\nhearing. Peschong has moved to vacate our order to supplement the record, arguing\nthat the parties had agreed that the trial transcript was not, and would not be, a part\nof the record. Passing no judgment on that assertion, we grant the motion to vacate\nand will return the transcript to the state court unread. Peschong’s alternative motion\nfor leave to file a supplemental brief regarding the transcript is denied as moot.\n\n -2-\n\fChild Protective Services, which filed a child protection petition with the Hennepin\nCounty Juvenile Court (juvenile court). On December 31, 2015, the juvenile court\ndenied Peschong’s motion to dismiss the petition. Following a bench trial in January\n2016, the juvenile court adjudicated D.P. a child in need of protection or services and\nordered that he be transferred to the Hennepin County Child Protective Services for\ncontinued foster care placement, in which he remained for some seven months. The\njuvenile court’s ruling was affirmed by the Minnesota Court of Appeals. Peschong’s\npetition for review was denied by the Minnesota Supreme Court.\n\n The Peschongs filed this action on March 7, 2017, seeking relief under\nMinnesota and federal law. They alleged that the report was false and caused D.P.\nto be separated from his family. Children’s Healthcare and Dr. Swenson\nsubsequently filed a motion for judgment on the pleadings, which the district court\ngranted, concluding that “because the elements of collateral estoppel have been met,\n[the Peschongs] are barred from re-litigating the accuracy of the report,” a threshold\nquestion for each of the Peschongs’ district court claims. Peschong v. Children’s\nHealthcare, No. 17-706, 2017 WL 3016767, at 6 (D. Minn. July 14, 2017).\n\n II.\n\n We review de novo an order granting a motion for judgment on the pleadings.\nWishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). We apply Minnesota’s law\non collateral estoppel, which “precludes a party from relitigating a legal or factual\nissue that was actually litigated in a prior proceeding and was essential to the\njudgment rendered.” Mandich v. Watters, 970 F.2d 462, 465 (8th Cir. 1992) (citing\nHauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978)). For collateral estoppel to\napply, Children’s Healthcare and Dr. Swenson must show: “(1) the issue was\nidentical to one in a prior adjudication; (2) there was a final judgment on the merits;\n(3) the estopped party was a party or in privity with a party to the prior adjudication;\nand (4) the estopped party was given a full and fair opportunity to be heard on the\n\n -3-\n\fadjudicated issue.” Id. (quoting Kaiser v. N. States Power Co., 353 N.W.2d 899, 902\n(Minn. 1984)). The Peschongs argue that collateral estoppel cannot be applied here\nbecause the relevant issue—whether the report is credible—was not previously\nadjudicated. We disagree.\n\n The report’s veracity was a central issue in the state court proceedings. The\nPeschongs have conceded that “[m]ost of the Petition’s factual allegations were taken\nverbatim from the Report.” Am. Compl. 8, ¶ 49. Although the similarity between the\nreport and the petition is not dispositive, we agree with the district court that\n“Ms. Peschong attacked the report and corresponding petition repeatedly throughout\n[the state court] proceedings, including on appeal.” Peschong, 2017 WL 3016767,\nat 4. The report’s credibility was thus necessarily an issue before the Minnesota\nstate courts, and thus not merely an ancillary, undecided matter.\n\n The Peschongs nevertheless argue that collateral estoppel does not apply\nbecause neither the juvenile court nor the Minnesota Court of Appeals explicitly\nstated that the report was credible. As set forth more fully below, however, it is clear\nthat the juvenile court addressed nearly all of the allegedly false statements that the\nPeschongs had set forth in their Amended Complaint. The juvenile court found those\nstatements credible and also found “in all respects that the testimony of Dr. Alice\nSwenson was credible.” In re Welfare of the Child of Essie Peschong, No. 27-JV-15-\n3545, slip op. at 4, ¶ 15.0 (Minn. Dist. Ct. Feb. 5, 2016) [hereinafter Juvenile Court\nOrder]. We conclude that the juvenile court implicitly ruled that the report was\ncredible in its entirety and that the Peschongs are thus precluded from relitigating this\nissue.\n\n III.\n\n We review the district court’s application of collateral estoppel in the light of\nthe juvenile court’s factual findings. Having compared the allegedly false statements\n\n -4-\n\fin the report to the analysis contained in the Juvenile Court Order, we conclude that\nthe juvenile court essentially came to the same conclusions as those set forth in Dr.\nSwenson’s report, as illustrated by the juvenile court’s observations set forth in the\nfollowing paragraphs.\n\n The Peschongs allege that the report falsely stated that D.P. was the victim of\nmedical child abuse. Am. Compl. 8, ¶ 40. The juvenile court concluded that “[D.P.]\n[wa]s a victim of medical child abuse perpetrated by [Peschong]. [Peschong] has\nsubjected [D.P.] to numerous unnecessary medical procedures and interventions, and\nas a result [D.P.] is without the required care for [his] physical and mental health.”\nJuvenile Court Order 20, ¶ 1.1.\n\n The Peschongs also allege that the report falsely stated that an “[e]valuation of\nD.P.’s medical records indicates a clear long-standing pattern of [Peschong] reporting\nsymptoms that are not observed by the medical staff.” Swenson Report 3; Am.\nCompl. 7, ¶ 39. In addressing this issue, the juvenile court stated:\n\n [T]here are several related yet rejected diagnoses which [Peschong]\n reported as confirmed, and for which [Peschong] sought treatment that\n was invasive and harmful to [D.P.]. Many of the symptoms reported by\n [Peschong] were never observed in a clinical environment under medical\n observation, and the diagnoses were ruled out by medical professionals.\n\nJuvenile Court Order 9-10, ¶ 29.0. The juvenile court similarly noted:\n\n [Peschong] reported to medical providers that [D.P.] was unable to walk\n long distances and could not maintain adequate oxygen saturations.\n This is not credible. During the time of [Peschong’s] claim regarding\n [D.P.’s] need for supplemental oxygen related to his inability to walk\n longer distances without tiring, [D.P.] was also actively participating in\n gymnastics.”\n\n\n\n -5-\n\fId. at 14, ¶ 32.1.5 (footnotes omitted). The juvenile court thus concluded that\nPeschong reported symptoms that were not observed by medical staff and that\nPeschong’s characterization of D.P.’s ability to walk long distances and maintain\nadequate oxygen saturation was not credible.\n\n The Peschongs next allege that the report falsely stated that “[D.P.] has\nundergone numerous polysomnography studies, none of which has demonstrated\nsevere sleep apnea.” Swenson Report 3; Am. Compl. 7, ¶ 37(d). Again, the juvenile\ncourt disagreed with Peschong’s claim, ruling that D.P.’s sleep apnea was “[m]ild to\nmoderate,” not severe. Juvenile Court Order 8, ¶ 28.3. The juvenile court went on\nto state that “[Peschong] reported symptoms associated with [D.P.’s sleep apnea] that\nwere never observed by medical providers. This resulted in multiple invasive and\nunnecessary medical procedures, which posed a risk to the child’s physical safety and\nemotional wellbeing.” Id. at 11, ¶ 31.8.1. The juvenile court thus explicitly rejected\nPeschong’s characterization of D.P.’s sleep apnea.\n\n The Peschongs additionally allege that the report falsely stated that “D.P. has\nbeen tethered to external oxygen for his entire life with no clear reason.” Swenson\nReport 4; Am. Compl. 7, ¶ 38. Although the juvenile court could not determine the\n“exact amount of time [D.P.] was actively using supplemental oxygen,” Juvenile\nCourt Order 14, ¶ 32.1.4, the court noted that “[D.P.] has a ‘lifetime’ prescription for\nsupplemental oxygen.” Id. at 13, ¶ 32.1.1 (footnote omitted). The court further noted\nthat although “[Peschong] testified that [D.P.] no longer needed supplemental oxygen\nfollowing his tracheostomy, [] Dr. Smeltzer renewed [D.P.’s] oxygen prescription\nafter the surgery, in November of 2014.” Id. at 13, ¶ 32.1.3 (footnote omitted).\nFurthermore, “[o]n or about July 8, 2015, [Peschong] [] told investigation child\nprotection social worker Ken Maher that she would provide [D.P.] with oxygen when\nhe appeared tired or out of breath.” Id. at 13, ¶ 32.1.2 (footnote omitted). When the\nreport is viewed as a whole, we conclude that the juvenile court agreed that D.P. was\nusing supplemental oxygen up to the point when he was removed from the\n\n -6-\n\fPeschongs’ home. Although the juvenile court did not employ the report’s language\nverbatim, it reached the same conclusion as that set forth in the report.\n\n The Peschongs further allege that the report falsely stated that “[D.P.] was\nrepeatedly noted to have no real need for supplemental oxygen” and that “[p]roviders\nbegan expressing skepticism about D.P.’s diagnoses and medical needs.” Swenson\nReport 3; Am. Compl. 7, ¶ 37(e) and (f). The juvenile court observed, however, that\nD.P. was referred to Dr. Swenson because Nurse Practitioner Brady expressed\nconcerns regarding medical child abuse. Juvenile Court Order 7, ¶ 25.1. Specifically,\n“Ms. Brady was concerned that [D.P.] was on supplemental oxygen for a long period\nof time and a trach was placed in [D.P.] without any objective reason to do so.\nDr. Paula Mackey, the child’s former primary care physician at Children’s Hospital\nand Clinics, shared Dr. Brady’s concerns.” Id. at 7-8, ¶ 25.1 (footnote omitted).\nNurse Practitioner Brady’s concerns regarding medical child abuse reveal that health\ncare providers were skeptical of D.P.’s diagnoses and medical needs.\n\n The Peschongs also argue that the report falsely stated that D.P.’s oxygen\ndesaturations were not observed while he was an inpatient.3 Am. Compl. 7, ¶ 37(c);\nsee also Swenson Report 2. The juvenile court stated, however, that “[t]he significant\ndesaturations reported by [Peschong] were not documented in the hospital, and [D.P.]\nwas discharged and/or continued on the same treatments after medical providers\nconfirmed that [D.P.’s] oxygen levels were consistently normal.” Juvenile Court\nOrder 12, ¶ 31.8.3 (footnote omitted).\n\n The Amended Complaint raises two fact issues not specifically addressed by\nthe juvenile court. First, the report stated that after D.P. was released from the\n\n 3\n The report referred to an August 25, 2004, incident. Swenson Report 2. The\nAmended Complaint characterized the report’s statement as a general assertion.\nUnder either characterization, we conclude that the juvenile court addressed the issue\nor facts embracing the issue.\n\n -7-\n\fhospital following his June 18-July 6, 2004, initial hospitalization, he was placed on\nan “increased calorie formula for failure to thrive, a diagnosis based primarily on\n[Peschong’s] reports of difficulty feeding.” Swenson Report 1-2. Second, the report\nalso stated that “D.P. was again hospitalized on 7/12/2004 for increased work of\nbreathing. He was reported to be desaturating at home but no respiratory\nabnormalities were noted on exam.” Id. at 2. Although it did not specifically address\nthese two hospitalizations, the juvenile court, as shown above, repeatedly concluded\nthat Peschong reported symptoms that medical professionals did not observe,\nresulting in “numerous unnecessary medical procedures and interventions.” Juvenile\nCourt Order 20, ¶ 1.1. We thus conclude that given the similarity between the report\nand the petition, the finding that Dr. Swenson’s testimony was credible, and its own\ndetailed findings, the juvenile court necessarily found the report credible.\n\n Finally we reject the Peschongs’ argument that the district court’s application\nof collateral estoppel is unfair or inequitable. The district court’s order contains no\nspecific reference to the concept of equitableness. Nevertheless, we are satisfied from\nthe district court’s reference to relevant Minnesota case law that a finding of\nequitableness inheres its decision to apply the doctrine in the circumstances of this\ncase. See Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004) (observing\nthat collateral estoppel is not to be rigidly applied but instead invoked only after a\ndetermination of whether its application would work an injustice on the party against\nwhom it is urged).\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371760/", "author_raw": "WOLLMAN, Circuit Judge."}]}	WOLLMAN	ARNOLD	KELLY	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594507/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,995	UNITED STATES of America, Plaintiff - Appellee v. Keith HAGEN, Defendant - Appellant	United States v. Keith Hagen	2019-02-28	17-3279	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Wollman, Loken, Erickson", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3279\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Keith Hagen\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Aberdeen\n ____________\n\n Submitted: October 25, 2018\n Filed: February 28, 2019\n ____________\n\nBefore WOLLMAN, LOKEN, and ERICKSON, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n Keith Hagen and Amanda Holy Bull, then husband and wife, established Holy\nBull Cattle Company (“HBCC”) in 2004 to provide custom grazing services to cattle\nproducers on pasture land leased through the Bureau of Indian Affairs (“BIA”), which\nmanages and leases land the federal government holds in trust on behalf of individual\nIndian owners. Hagen served as point of contact with cattle producers and worked\nthe cattle, while Holy Bull arranged pasture land leases through the BIA.\n\f Hagen and Holy Bull were charged with three counts of wire fraud, four counts\nof mail fraud, and one count of conspiracy to commit mail and wire fraud after cattle\nproducers who contracted for grazing services during the 2012-2014 seasons received\nneither those services nor refunds of payments made to HBCC. Holy Bull pleaded\nguilty to the conspiracy count and testified for the government at Hagen’s trial. After\na three-day trial, the jury convicted Hagen of all eight counts. He was sentenced to\nconcurrent terms of 46 months imprisonment and 3 years of supervised release on\neach count, restitution in the amount of $236,000, and a $100 special assessment on\neach count. Hagen appeals, arguing the evidence was insufficient to prove he had the\nrequisite intent to defraud, and two mailings were not in furtherance of any fraud.\nReviewing the evidence in the light most favorable to the jury’s verdict, we affirm\nHagen’s conviction of conspiracy and two substantive fraud counts but vacate the\nconviction and special assessments on the other five substantive counts.\n\nSufficiency of the Evidence\n\n The grazing season in this region of South Dakota runs from May 15 to\nOctober 15 each year. The BIA leases pasture land through a negotiation process\nwith individual trust land owners or through an advertised and open bid process each\nspring. Most leases run for one, three, or five years; payment is due in October of the\nyear prior to the lease. In each lease, the BIA provides a default grazing ratio for the\nentire season of one cow-calf pair per six acres of land. A person seeking to graze\nmore cow-calf pairs per acre must submit a grazing plan to the BIA for approval.\n\n From 2004 through 2011, HBCC provided custom grazing services for one or\ntwo cattle producers each year on land leased through the BIA’s negotiation process.\nHagen promoted HBCC’s services and contacted producers seeking pasture using an\nagricultural publication, the Farm Forum, known locally as the “Green Sheet.”\nBusiness with producers ran smoothly these years, but the BIA wrote letters to Hagen\nand Holy Bull noting their noncompliance with the agency’s leasing procedures --\n\n -2-\n\fsigning multi-year leases in May 2008 that were later cancelled for nonpayment,\ngrazing cattle on land where leases had not been paid, letting cattle get loose and\ntrespass on other property, and overgrazing leased land. Hagen and Holy Bull never\nresponded and did not submit grazing plans to deviate from the default grazing ratio.\n\n In 2012, the first of the grazing seasons at issue, Holy Bull leased 347.53 acres\nof pasture through the BIA for grazing. Under the BIA grazing ratio, that land could\nsupport a full season of grazing for 57.92 cow-calf pairs. Without submitting a\ngrazing plan to deviate from that ratio, Hagen and Holy Bull contracted with three\ncattle producers to graze at least 100 cow-calf pairs and 200 heifers. Andrew\nStroschein grazed at least 70 pairs, as planned. Only 33 of John Haefner’s 100 cow-\ncalf pairs grazed with HBCC, and only for one day. Bruce Penner needed to find\ntemporary grazing land at the beginning of the season because HBCC had not\nproperly leased BIA land, and was forced to remove his 200 heifers five weeks early\nbecause the land HBCC supplied could not support the cattle. Haefner and Penner\npaid $30,000 and $46,000 in advance for HBCC grazing services; neither received\na refund for services not provided.\n\n In 2013, Holy Bull leased 547.53 acres of pasture through the BIA, which\ncould support 91.26 cow-calf pairs under the BIA default ratio. Hagen contracted\nwith six different producers to graze a total of 380 cow-calf pairs without submitting\na grazing plan to the BIA. Each producer paid in full up front, a total of $126,500.\nNot a single cow grazed on HBCC-leased land, and no producer received a refund.\n\n In 2014, Hagen and Holy Bull leased 40 acres of pasture through the BIA,\nwhich could support 6.67 cow-calf pairs under the default ratio. Hagen contracted\nwith three different producers to graze 300 cow-calf pairs. Once again the producers\npaid in full up front, a total of $102,500. No producer brought a single cow to\npasture, and none received a refund. One producer, Calvin Herrboldt, was able to\navoid a loss by stopping payment on his check before Hagen could cash it.\n\n -3-\n\fThe Conspiracy Count -- Count 1\n\n Count 1 charged Hagen and Holy Bull with conspiracy to commit mail and\nwire fraud by contracting with twelve different cattle producers to graze over 700\ncow-calf pairs and 200 heifers during the 2012-2014 grazing seasons for over\n$300,000, fulfilling only one contract, and failing to refund cattle producer payments\nfor services not provided. Mail fraud is use of the mails to execute a “scheme or\nartifice to defraud,” 18 U.S.C. § 1341; wire fraud is use of the wires to do the same,\n18 U.S.C. § 1343; conspiring to do either is a separate offense, 18 U.S.C. § 1349.\nEach offense requires proof of intent to defraud, proof that the defendant willfully\nparticipated in a scheme with knowledge of its fraudulent nature and the intent to\nachieve illicit objectives. United States v. Bailey, 859 F.2d 1265, 1273 (7th Cir.\n1988); see United States v. Louper-Morris, 672 F.3d 539, 555-57 (8th Cir. 2012).\n\n In support of this charge, the government introduced detailed testimony\nregarding Hagen’s above-summarized dealings with certain cattle producers in 2012,\n2013, and 2014. The government also introduced evidence that five other cattle\nproducers contracted and paid for HBCC grazing services those years but received\nneither services nor refunds, and that Calvin Herrboldt would have suffered a loss in\n2014 had he not stopped payment on his check before Hagen could cash it. Many\ncattle producers testified that they contracted with Hagen and paid up front, but when\ngrazing season began, Hagen pushed back the grazing dates, made excuses as to why\nthe cattle could not come, or simply stopped communicating until producers were\nforced to arrange other grazing.\n\n “In reviewing the sufficiency of the evidence, we consider the evidence in the\nlight most favorable to the jury’s verdict, accepting all reasonable inferences that\nsupport the verdict.” United States v. Brown, 627 F.3d 1068, 1072-73 (8th Cir.\n2010), cert. denied, 565 U.S. 892 (2011). “We must uphold the conviction unless no\nreasonable jury could find the defendant guilty.” United States v. Walker, 818 F.3d\n\n -4-\n\f416, 419 (8th Cir. 2016) (cleaned up). After careful review of the extensive trial\nrecord, we conclude the evidence was sufficient to convict Hagen of conspiracy to\ncommit mail and wire fraud.\n\n The evidence established that Hagen contracted to graze substantially more\ncattle on land HBCC leased than the BIA default ratio recommended in both 2012\nand 2013. And in 2014, Hagen contracted to graze 300 cow-calf pairs on 40 acres --\nforty times more than the default ratio recommended and substantially more than 40\nacres could support. Holy Bull testified she knew what she and Hagen were doing\nwas wrong, but they needed the money to support their large family. While\ncontracting that exceeds the BIA ratio does not without more prove intent to defraud,\nevidence that Hagen knowingly collected money to graze more cattle than his leased\nland could support permitted a reasonable jury to find the requisite fraudulent intent.\n\n Hagen argues the evidence established only that he was a naive businessman\nwho had no intent to defraud cattle producers. But when a defendant’s victims\n“suffered some tangible loss -- as they did here -- the scheme itself often serves as\nevidence of a defendant’s intent to defraud.” United States v. Ervasti, 201 F.3d 1029,\n1037 (8th Cir. 2000) (cleaned up). Given the government’s evidence of a three-year\nscheme that resulted in extensive producer losses, Hagen’s claim that he was simply\na naive businessman “was a credibility issue, the province of the jury to resolve.”\nWalker, 818 F.3d at 421.\n\nThe 2012 Season -- Counts 2 and 3\n\n Counts 2 and 3 charged Hagen with using the wires to execute a scheme to\ndefraud by cashing John Haefner’s and Bruce Penner’s checks for grazing services\nthat were not provided during the 2012 grazing season. To establish wire fraud, the\ngovernment must prove a “scheme,” which “connotes some degree of planning by the\nperpetrator,” specific intent to defraud, which “may be inferred from all the facts and\n\n -5-\n\fcircumstances surrounding [Hagen’s] actions,” DeMier v. United States, 616 F.2d\n366, 369 (8th Cir. 1980), and use of the mails or wires in furtherance of the scheme\nto defraud, United States v. Tackett, 646 F.2d 1240, 1244 (8th Cir. 1981). Hagen\nargues the government failed to prove that he acted with the requisite intent to\ndefraud these producers. We agree.\n\n Regarding Count 2, the trial evidence established that Haefner responded to an\nHBCC advertisement in the Green Sheet and paid Hagen $30,000 on April 13, 2012,\nfor grazing services for 100 cow-calf pairs. Haefner was ready to bring his cattle to\npasture on May 1, but Hagen could not take them until the second week in May.\nHaefner then brought 33 cow-calf pairs and unloaded them with Hagen’s help, and\nHaefner’s hired hand brought a second load the next day. After unloading, an\nunknown man stopped Haefner’s hand and told him “the tribe was waiting for cattle\nto confiscate because [Hagen] hadn’t paid his leases in four years.” Hearing this,\nHaefner loaded up all of his cows and took them home.\n\n On this evidence, we cannot say a reasonable jury could find Hagen acted with\nspecific intent to defraud Haefner. Hagen began fulfilling the contract when he\nhelped Haefner unload 33 cow-calf pairs. There was no evidence that, had an\noutsider not persuaded Haefner to walk away from the deal, Hagen would not have\nprovided the agreed grazing services. Indeed, Hagen accused Haefner of breaching\nthe contract by removing his cows. In these circumstances, that Haefner requested\nbut did not receive a refund does not establish intent to defraud. Likewise, Hagen’s\npossible non-compliance with the BIA grazing ratio does not establish intent to\ndefraud. We vacate Hagen’s conviction and the special assessment on Count 2.\n\n Regarding Count 3, the evidence established that Penner responded to HBCC’s\nadvertisement in the Green Sheet, agreed to pay $46,000 to graze 200 heifers during\nthe 2012 season, and wrote a check to HBCC for the full amount on April 18, 2012.\nEarly in the grazing season, after delivering his cattle, the BIA advised Penner that\n\n -6-\n\fhe must move his cattle because they were on land not properly leased by Hagen and\nHoly Bull. Two weeks later, Hagen and Holy Bull resolved the leasing issue and\nreimbursed Penner for the cost of substitute grazing. Penner returned his cattle to\nHBCC land but due to dry conditions, brought them home five weeks early. Hagen\nsaid he would refund Penner $12,000 for those five weeks but never did.\n\n This evidence fails to establish Hagen cashed Penner’s check in furtherance of\na scheme to defraud Penner. Hagen attempted to fulfill the contract, but dry\nconditions occurring long after Penner’s check was cashed forced its premature\ntermination. Even if Hagen broke a promise to refund $12,000 for the early\ntermination, breach of contract is not fraud, and the cashing of Penner’s check in\nApril was not in furtherance of any dispute that arose at the end of the grazing season.\nAccordingly, we vacate Hagen’s conviction and the special assessment on Count 3.\n\nThe 2013 Season -- Counts 5, 6, and 7\n\n Count 5 charged Hagen with using the mails to execute a scheme to defraud\nRobert Kriz by mailing Kriz a grazing contract for the 2013 season. The evidence\nestablished that Hagen, responding to an advertisement in the Green Sheet, offered\nto graze Kriz’s cattle for the 2013 grazing season. The Kriz family typically pastured\ntheir cattle with the Stluka family, but due to a fire the two families needed new land\non which to graze their cattle that season. Robert Kriz and John Stluka met Hagen\nand viewed the pasture, agreed to graze a total of 100 cow-calf pairs for $35,000 that\nseason, and Holy Bull mailed the contract to the Krizes, who gave Hagen a check for\n$17,500 on April 23, 2013. When the time came to bring the cattle to pasture a month\nlater, Hagen said he did not have the land to graze the cattle or the money to refund\nthe Krizes. In August 2013, the Krizes received a letter from HBCC apologizing for\nany inconveniences and offering to graze their cattle for the rest of the season. By\nthen, the BIA had informed David Kriz that Hagen did not have any pasture leased.\nThe Krizes decided they would not risk losing their cattle by bringing them to HBCC.\n\n -7-\n\f Once again, although the question is somewhat closer, we conclude a\nreasonable jury could not find that Hagen caused the grazing contract to be mailed in\nfurtherance of a scheme to defraud. The trial evidence established that Hagen had\nenough land to graze Kriz’s 50 cow-calf pairs for the 2013 grazing season, well\nwithin the default BIA ratio of 91.26 pairs for the land HBCC leased that season. The\nletter Hagen sent in August offered to belatedly fulfill his end of the deal by grazing\nKriz’s cattle for the rest of the season. The government failed to prove he had no\nintent or no ability to carry out that offer. Thus, the evidence did not establish either\na scheme to defraud or Hagen’s specific intent to defraud Robert Kriz when the\ngrazing contract was mailed in April 2013. Accordingly, we vacate Hagen’s\nconviction and the special assessment on Count 5.\n\n Counts 6 and 7 charged that Hagen used the mails to execute a scheme to\ndefraud Robert Kriz and John Stluka when he sent them letters in August 2013\noffering to graze their cattle for the remainder of the season. Under 18 U.S.C. § 1341,\nthe alleged use of the mail must be “sufficiently closely related to,” and operate to\nfurther, the defendant’s scheme. Tackett, 646 F.2d at 1244. Hagen argues the\ngovernment failed to prove these letters were used in furtherance of the fraud alleged.\nWe agree.\n\n The letters underlying Counts 6 and 7 were sent in August of 2013, some four\nmonths after Hagen received payments from Kriz and Stluka for 2013 grazing and\nthree months after the start of the grazing season. Thus, the letters were not sent for\nthe purpose of executing the alleged scheme to defraud these producers, for Hagen\nhad already received their payments for cattle HBCC was not grazing. Mailing the\nletters had no effect on the success or failure of the alleged scheme; it was already\ncompleted. As in Tackett, Hagen’s “after-the-fact, unsolicited, incidental mailing[s]\nat issue” cannot sustain his conviction on Counts 6 and 7. Id. at 1244.\n\n\n\n\n -8-\n\f The government argues that these letters to producers Kriz and Stluka furthered\nthe scheme to defraud because they were “designed to lull the victims into a false\nsense of security, postpone their ultimate complaint to the authorities, and therefore\nmake the[ir] apprehension . . . less likely.” United States v. Lane, 474 U.S. 438, 451\n(1986) (quotation omitted). However, Hagen’s letters accepting responsibility,\napologizing for delay and inconvenience, and offering to fulfill the Kriz and Stluka\ngrazing contracts are not communications that would postpone inquiries or\ncomplaints to the BIA or other authorities. And unlike the evidence in United States\nv. Fiorito, 640 F.3d 338, 348 (8th Cir. 2011), neither Kriz nor Stluka testified that he\nwas lulled into a false sense of security. Indeed, when asked on direct exam what\ntheir responses were to this letter, Steve Stluka testified, “I just kind of laughed. . . .\nI mean, it’s too late,” and Robert Kriz testified, “My honest reaction was, why do we\nwant to take cattle down there? We’ve already lost $35,000 between the two of us.”\nThis brief testimony did not establish the letters were in furtherance of schemes to\ndefraud. Accordingly, we vacate Hagen’s convictions and the special assessments on\nCourts 6 and 7.\n\nThe 2014 Season -- Counts 4 and 8\n\n Counts 4 and 8 charged that Hagen used mail and wire to execute a scheme to\ndefraud Robert Berg during the 2014 grazing season when Berg mailed Hagen a\n$35,000 check on May 30, 2014, in full payment of a grazing contract (Count 8) and\nHagen cashed the check using wire transmission on June 4, 2014 (Count 4). After\nHagen responded to Calvin Herrboldt’s Green Sheet ad in the spring of 2014 seeking\ngrazing land that season, Herrboldt alerted Berg, a family friend, who was also\nlooking to graze 100 cow-calf pairs. At this time, HBCC had leased only 40 acres of\npasture, which could support 6.67 cow-calf pairs under the BIA default ratio. Berg’s\nson Riley traveled to view Hagen’s pasture, where Hagen assured him there was\nenough land to support the two producers’ 200 cow-calf pairs. That day, Hagen gave\nRiley a signed contract to custom graze 100 cow-calf pairs for $35,000, and Riley\n\n -9-\n\fgave Hagen a check for the full amount. However, the Bergs stopped payment on the\ncheck after a second visit to the pasture. In response, Hagen repeatedly called the\nBergs, assuring them he had enough leased land but insisting on full payment up\nfront. Still in need of pasture, Berg mailed Holy Bull a second check for $35,000,\nwhich was promptly cashed. Later, when the time came for grazing, Berg called\nHagen several times to plan delivery. Hagen never returned the calls. The Bergs\ngrazed no cattle on HBCC pasture and never received a refund.\n\n Based on this evidence, the jury reasonably found that Hagen had the intent to\ndefraud Robert Berg. Knowing only 40 acres of land had been leased for grazing,\nHagen nonetheless contracted to graze a quantity of cow-calf pairs that 40 acres could\nnot possibly support. He accepted Berg’s payment in advance, then repeated the\nmisrepresentation that he had leased sufficient pasture land to induce a second\npayment in advance from a skeptical client who had stopped payment on the first\ncheck. When it was time to graze the cattle, Hagen disappeared with the client’s\nmoney. As this was a victim who suffered tangible loss, “the scheme itself . . .\nserve[d] as evidence of [Hagen’s] intent to defraud.” Ervasti, 201 F.3d at 1037.\nMoreover, Holy Bull testified that she and Hagen knew the land could not support the\ncattle they agreed to graze but took the money anyway.\n\n Hagen argues the government failed to prove he intended to defraud Berg\nbecause there was evidence that he expected to lease the same amount of land through\nthe BIA for the 2014 season as he had in the past. However, in June 2014, Hagen had\nonly administratively appealed the BIA’s decisions to lease HBCC only 40 acres that\nseason. Not only was the outcome of the appeal uncertain, it was also impossible that\nthe appeal would be decided in his favor before the 2014 grazing season because it\nwas not received by the BIA until June 30, 2014. Thus, when Hagen contracted to\n\n\n\n\n -10-\n\fgraze Berg’s 100 cow-calf pairs, Hagen knew he was promising to graze substantially\nmore cattle than his 40 acres could possibly support -- a sailor’s promise.1\n\n On this evidence, Hagen’s intent to defraud Berg is “a credibility issue, the\nprovince of the jury to resolve.” Walker, 818 F.3d at 421. We conclude the jury\nreasonably found that Hagen, “having devised or intending to devise any scheme or\nartifice to defraud,” used mail and wire “for the purpose of executing such scheme or\nartifice.” 18 U.S.C. §§ 1341, 1343. Accordingly, we affirm Hagen’s conviction and\nsentence on Counts 4 and 8.\n\nConclusion\n\n For the foregoing reasons, we instruct the district court to vacate the\nconvictions and special assessments on Counts 2, 3, 5, 6, and 7. In all other respects,\nthe judgment of the district court is affirmed. See United States v. Grimes, 702 F.3d\n460, 469, 472 (8th Cir. 2012).\n ______________________________\n\n\n\n\n 1\n “Tis but a sailor’s promise, weather-bound,” made not with the intent to keep,\nbut to break as soon as the seas are calm enough to sail. Robert Browning, Sordello\n(1840), reprinted in The Poetical Works of Robert Browning 115, 150 (Augustine\nBirrell ed., 1902).\n\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372248/", "author_raw": "LOKEN, Circuit Judge."}]}	WOLLMAN	LOKEN	ERICKSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594995/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,996	UNITED STATES of America, Plaintiff - Appellee v. Jesse J. WALN, Defendant - Appellant	United States v. Jesse Waln	2019-02-28	18-1812	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Erickson, Magnuson", "parties": "", "opinions": [{"author": "MAGNUSON, District Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1812\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Jesse J. Waln\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Pierre\n ____________\n\n Submitted: December 13, 2018\n Filed: February 28, 2019\n [Published]\n ____________\n\nBefore LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District\nJudge.\n ____________\n\nMAGNUSON, District Judge.\n\n\n\n\n 1\n The Honorable Paul A. Magnuson, United States District Judge for the District\nof Minnesota, sitting by designation.\n\f A jury convicted Appellant Jesse J. Waln of two counts of possession of a\nstolen firearm, but acquitted him of three underlying burglary and larceny charges.\nThe district court2 sentenced him to 70 months’ total imprisonment. Waln appeals his\nconviction and sentence, and for the following reasons, we affirm.\n\n An Indictment charged Waln and four others with two counts of first-degree\nburglary and aiding and abetting, three counts of larceny and aiding and abetting, one\ncount of possession of a stolen firearm, and one count of possession of a stolen\nfirearm and aiding and abetting. The charges arose out of three burglaries on the\nRosebud Indian Reservation—one in May 2016, and two in November 2016. The\nother four defendants, including Waln’s brother Jeremiah, pled guilty.\n\n Waln also pled guilty on the morning of trial to Counts I and II, which charged\nlarceny and burglary in the May incident. After a three-day trial, the jury found Waln\nnot guilty on the three counts charging larceny and burglary in the November\nincidents. The jury convicted Waln of the two counts of possession of a stolen\nfirearm, however. One of these counts related to a Savage .204 caliber rifle stolen\nfrom the home of Beau Westover in one of the November incidents. The other related\nto a Benelli SuperNova 12 gauge shotgun also stolen from Westover’s home in\nNovember. The district court denied Waln’s motion for judgment of acquittal or a\nnew trial on these counts.\n\n At sentencing, the district court declined to apply the acceptance-of-\nresponsibility reduction as to the counts that proceeded to trial, even though those\ncounts were grouped with the counts to which Waln pled guilty. The district court\nfound that Waln had not testified truthfully, so that the acceptance-of-responsibility\ncredit was not warranted. The district court ultimately sentenced Waln to 30 months\n\n\n 2\n The Honorable Roberto Antonio Lange, United States District Judge for the\nDistrict of South Dakota.\n\n -2-\n\fon the guilty-plea counts, 57 months on the two firearms counts, to be served\nconcurrently with the exception of 13 months on the burglary count, which was to run\nconsecutively to the other sentences. Waln received a total sentence of 70 months.\nThe district court made clear that 70 months was the appropriate punishment for\nWaln, regardless of the applicable guidelines range.\n\n Waln argues that the district court erred in denying the motion for acquittal or\nnew trial and in failing to give him acceptance-of-responsibility credit. He also\ncontends that the evidence was insufficient to convict him of possession with regard\nto the Savage rifle. He does not similarly challenge the sufficiency of the evidence\nwith respect to his conviction for possession of the Benelli shotgun.\n\nA. Standard of Review\n\n We review the denial of a motion for judgment of acquittal based on the\nsufficiency of the evidence de novo. United States v. Griffith, 786 F.3d 1098, 1102\n(8th Cir. 2015). The court must “view the evidence in the light most favorable to the\nguilty verdict, granting all reasonable inferences that are supported by that evidence.”\nUnited States v. Johnson, 745 F.3d 866, 869 (8th Cir. 2014) (quotation omitted). The\ncourt reviews a trial court’s decision to admit expert witness testimony for an abuse\nof discretion. United States v. Evans, 272 F.3d 1069, 1094 (8th Cir. 2001).\n\n The trial court’s application of the Guidelines to the facts is reviewed de novo,\nand its factual findings are reviewed for clear error. United States v. Wiley, 350 F.3d\n736, 738 (8th Cir. 2003).\n\n\n\n\n -3-\n\fB. Motion for Acquittal\n\n Waln challenges two aspects of the district court’s denial of his motion for\nacquittal on the charge of possession of a stolen firearm, specifically the Savage rifle.\n\n 1. Interstate Commerce\n\n First, Waln contends that the district court erroneously allowed an expert\nwitness to testify as to the interstate nexus component of the possession-of-a-stolen-\nfirearm charge. Former ATF Agent Probst testified at trial that the Savage rifle was\nmanufactured in Massachusetts and purchased by the individual from whom it was\nstolen, thus satisfying the interstate commerce element.\n\n Rule 16 requires the Government to give a defendant, at the defendant’s\nrequest, “a written summary of any [expert witness] testimony that the government\nintends to use . . . in its case-in-chief at trial.” Fed. R. Crim. P. 16(a)(1)(G). Waln\nargues that he requested Rule 16 information but the Government did not give him\nnotice that Agent Probst would be testifying as an expert witness.\n\n “A defendant asserting reversible error under Rule 16(a)(1)(G) must\ndemonstrate prejudice resulting from the district court’s decision to admit the\ncontested testimony.” United States v. Kenyon, 481 F.3d 1054, 1062 (8th Cir. 2007).\nWaln does not challenge the substance of Agent Probst’s testimony, and it is beyond\ndispute that the rifle in question had traveled in interstate commerce. Although Waln\nmoved to exclude the evidence because of the Rule 16 violation, prejudice in this\nsituation requires more than that the evidence could have been excluded. It requires\nthat the error “was prejudicial to the substantial rights of the defendant.” United\nStates v. Pelton, 578 F.2d 701, 707 (8th Cir. 1978). Proving substantial prejudice is\na “high hurdle.” United States v. Jackson, 446 F.3d 847, 849 (8th Cir. 2006). Given\nthe indisputable interstate-commerce nexus present here, Waln cannot establish\n\n -4-\n\fsubstantial prejudice, and there was no reversible error in the district court’s decision\non this issue.\n\n 2. Sufficiency of the Evidence\n\n Waln next argues that the evidence was insufficient to convict him of Count VI,\npossession of the Savage rifle. One of Waln’s co-defendants, Danielle Marissa White\nEyes, testified at trial that she went with Waln to sell two guns to a person named\nMark O’Leary. Waln intended to, and according to White Eyes did, exchange the\nguns for methamphetamine. O’Leary did not testify at Waln’s trial, invoking his 5th\nAmendment rights. The investigating officer testified that he recovered the stolen\nSavage rifle from O’Leary. Waln testified and denied any involvement in the\nburglaries.\n\n The crime of possession of a stolen firearm requires the jury to conclude that\nWaln knowingly possessed, received, concealed, stored, bartered, sold or disposed of\nfirearm that was stolen and that Waln knew or had reasonable cause to believe was\nstolen, in addition to the interstate-commerce nexus discussed above. United States\nv. White, 816 F.3d 976, 985 (8th Cir. 2016); 18 U.S.C. § 922(j). The testimony of\nWhite Eyes and the officer is sufficient to convict Waln of possessing a stolen firearm.\n“A jury’s credibility determinations are well-nigh unreviewable because a jury is in\nthe best position to assess the credibility of witnesses and resolve inconsistent\ntestimony.” United States v. Buchanan, 604 F.3d 517, 528-29 (8th Cir. 2010)\n(quotation omitted). The jury was entitled to believe White Eyes and disbelieve Waln.\nThe district court’s decision on this issue is correct.\n\nC. Sentencing\n\n Waln’s presentence investigation report recommended grouping the May and\nNovember burglaries under U.S.S.G. § 3D1.2(b) and (c), and further recommended\n\n -5-\n\fapplying a two-level acceptance-of-responsibility reduction to Waln’s total offense\nlevel. The district court declined to apply the acceptance of responsibility reduction\nto the counts related to the November burglary, so the reduction had no effect on\nWaln’s total offense level.\n\n “An error in calculating the guideline range would be a procedural error within\nthe meaning of Gall v. United States.” United States v. Espinosa, 539 F.3d 926, 928-\n29 (8th Cir. 2008). But Waln has not established any error in the calculation of his\nguideline range. The Guidelines require that “[a]ll counts involving substantially the\nsame harm [] be grouped together,” U.S.S.G. § 3D1.2, noting as relevant here that\n“substantially the same harm” means\n\n (a) When counts involve the same victim and the same act or transaction.\n\n (b) When counts involve the same victim and two or more acts or\n transactions connected by a common criminal objective or constituting\n part of a common scheme or plan.\n\n ....\n\n (d) When the offense level is determined largely on the basis of the total\n amount of harm or loss, the quantity of a substance involved, or some\n other measure of aggregate harm, or if the offense behavior is ongoing\n or continuous in nature and the offense guideline is written to cover such\n behavior.\n\nId. The counts here did not involve the same victim or same act or transaction—the\nvictims of the May burglary were different than the victims of the November\nburglaries, and there was no evidence that this was a continuing crime spree or a\ncommon scheme. Nor did the loss constitute any aggregate harm.\n\n The district court correctly determined that the May burglary was separate from\nthe counts arising from the November burglaries and that they need not be grouped\n\n -6-\n\ftogether. The sentencing transcript makes clear that the district court considered\nwhether to apply the acceptance-of-responsibility reduction to a grouped offense level\nor to only the offense level for the May burglaries to which Waln pled guilty.\n\n [B]ut under these peculiar circumstances where [Waln] pleaded guilty to\n the two offenses, pleaded not guilty to the remainder, and then\n knowingly swore falsely, the Court does not believe that acceptance of\n responsibility should reduce the offense level calculation with respect to\n the two more major offenses involving the stolen firearms.\n\n(Sentencing Tr. at 25-26.) The Guidelines provide that the district court must consider\nall relevant conduct when computing “the base offense level where the guideline\nspecifies more than one base offense level.” U.S.S.G. § 1B1.3(a). The district court\ndid so here, and did not commit any procedural error.\n\n Waln also argues in passing that the district court erred in applying an\nobstruction-of-justice enhancement. Waln contends that the application of this\nenhancement penalized him for exercising his constitutional right to testify in his own\ndefense. “But it is not at all unusual for a defendant to receive an enhancement for\nobstruction of justice based on testimony that a district court finds perjurious.”\nAdejumo v. United States, 908 F.3d 357, 364 (8th Cir. 2018). Indeed, the\nenhancement applies to “committing, suborning, or attempting to suborn perjury” and\nto “providing materially false information to a judge or magistrate judge.” U.S.S.G.\n§ 3C1.1 cmt. n.4(B), (F). The trial court here specifically found that Waln knowingly\nswore falsely, and therefore applied the enhancement. (Sentencing Tr. at 10-12.)\nThere was no error.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372249/", "author_raw": "MAGNUSON, District Judge."}]}	LOKEN	ERICKSON	MAGNUSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594996/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,999	In RE: Benjamin Matthew BENNETT; Teresia Robin Bennett Debtors the Paddock, LLC Appellant v. Benjamin Matthew Bennett; Teresia Robin Bennett Appellees	Paddock, LLC v. Bennett (In Re Bennett)	2019-02-28	18-2098	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888076/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888077/", "author_raw": ""}, {"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-2098\n ___________________________\n\n In re: Benjamin Matthew Bennett; Teresia Robin Bennett\n\n lllllllllllllllllllllDebtors\n\n ------------------------------\n\n The Paddock, LLC\n\n lllllllllllllllllllllAppellant\n\n v.\n\n Benjamin Matthew Bennett; Teresia Robin Bennett\n\n lllllllllllllllllllllAppellees\n ____________\n\n Appeal from the United States Bankruptcy\n Appellate Panel for the Eighth Circuit\n ____________\n\n Submitted: November 14, 2018\n Filed: February 28, 2019\n ____________\n\nBefore BENTON, BEAM, and ERICKSON, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Benjamin Matthew Bennett and Teresia Robin Bennett filed for Chapter 13\nbankruptcy. Their plan proposed that The Paddock’s secured claim in their\nmanufactured home would be bifurcated into secured and unsecured parts. The\nPaddock objected. The bankruptcy court1 overruled the objection. It held that 11\nU.S.C. § 1322(b)(2)’s anti-modification provision did not apply to The Paddock’s\nclaim. In re Bennett, 2017 WL 1417221 (Bankr. N.D. Iowa Apr. 20, 2017). The\nPaddock appealed. The Bankruptcy Appellate Panel (BAP) affirmed. In re Bennett,\n584 B.R. 15 (B.A.P. 8th Cir. 2018). The Paddock again appeals. Having jurisdiction\nunder 28 U.S.C. § 158(d)(1), this court affirms.\n\n I.\n\n The Paddock LLC installs, rents, and sells manufactured homes in a planned\nneighborhood it owns. The Bennetts rented and later purchased a manufactured\nhome, financed by monthly payments to The Paddock. At the time of purchase, they\nalso agreed, for the lot under the home, to a 990-year Ground Lease (99-year terms\nwith 9 renewal options). By the lease, the Bennetts pay a monthly association fee.\nThey pay personal-property taxes for the home; The Paddock pays real-property taxes\nfor the lot.\n\n The Bennetts filed for Chapter 13 bankruptcy. Their plan proposed that The\nPaddock’s claim—secured by a security interest only in their manufactured\nhome—would be treated as partly secured and partly unsecured under 11 U.S.C. §\n506(a)(1). The Paddock objected, arguing that an anti-modification provision bars\nbifurcation because the manufactured home is real property. This provision prohibits\na plan from modifying the rights of creditors who have “a claim secured only by a\nsecurity interest in real property that is the debtor’s principal residence.” 11 U.S.C.\n\n\n 1\n The Honorable Thad J. Collins, Chief Judge, United States Bankruptcy Court\nfor the Northern District of Iowa.\n\n -2-\n\n§ 1322(b)(2). After an evidentiary hearing, the bankruptcy court found that, under\nIowa law, the home was personal—not real—property. The court overruled The\nPaddock’s objection and confirmed the plan. The Paddock appealed to the BAP,\nwhich reviewed for clear error and affirmed.\n\n The Paddock appeals, arguing the bankruptcy court erred in finding the\nmanufactured home was personal property under Iowa law.\n\n II.\n\n “In an appeal from the BAP, this court independently reviews the bankruptcy\ncourt’s decision, applying the same standard of review as the BAP.” In re Terry, 687\nF.3d 961, 963 (8th Cir. 2012). Factual findings are reviewed for clear error and\nconclusions of law de novo. Id. This appeal presents a mixed question of law and\nfact: whether the bankruptcy court’s factual findings meet Iowa’s legal test for\nfixtures. Because this question entails primarily factual work, its resolution is\nreviewed for clear error. See U.S. Bank N.A. v. Village at Lakeridge, LLC, 138 S.\nCt. 960, 967 (2018).\n\n The Paddock has the burden to prove that its claim is within § 1322(b)(2)’s\nanti-modification exception. See Educ. Assistance Corp. v. Zellner, 827 F.2d 1222,\n1226 (8th Cir. 1987) (creditor objecting to Chapter 13 plan bears initial burden to\nproduce satisfactory evidence supporting its objection). See also In re Jordan, 403\nB.R. 339, 351 (Bankr. W.D. Pa. 2009) (collecting cases).\n\n The Paddock’s claim is secured by a security interest only in the Bennetts’\nmanufactured home, which is their principal residence. The issue is whether the\nhome is personal or real property. The Bankruptcy Code does not resolve this issue.\n“In the absence of a controlling federal rule, we generally assume that Congress has\n‘left the determination of property rights in the assets of a bankrupt’s estate to state\n\n\n -3-\n\nlaw,’ since such ‘[p]roperty interests are created and defined by state law.’”\nNobelman v. Am. Sav. Bank, 508 U.S. 324, 329 (1993) (alteration in original),\nquoting Butner v. United States, 440 U.S. 48, 54–55 (1979). See In re WEB2B\nPayment Sols., Inc., 815 F.3d 400, 405 (8th Cir. 2016) (“The nature and extent of the\ndebtor’s interest in property are determined by state law.”). Here, the issue is\ndetermined by Iowa law. See In re Reinhardt, 563 F.3d 558, 563–64 (6th Cir. 2009)\n(using state law to determine whether mobile home was personal or real property\nunder § 1322(b)(2)); In re Ennis, 558 F.3d 343, 345–46 (4th Cir. 2009) (same).\n\n Under Iowa common law, personal property is a fixture—thus real\nproperty—when: “(1) it is actually annexed to the realty, or to something appurtenant\nthereto; (2) it is put to the same use as the realty with which it is connected; and (3)\nthe party making the annexation intends to make a permanent accession to the\nfreehold.” Ford v. Venard, 340 N.W.2d 270, 271 (Iowa 1983), citing Cornell\nCollege v. Crain, 235 N.W. 731, 732 (Iowa 1931). The first two are “mainly\nimportant in determining the intention of the party making the annexation,” which is\n“the controlling consideration in determining the whole question.” Speer v. Donald,\n207 N.W. 581, 582 (Iowa 1926), quoting Ottumwa Woolen Mill Co. v. Hawley, 44\nIowa 57, 63 (1876). “[T]he intention is paramount and really the determining factor.”\nCornell College, 235 N.W. at 732. A party’s intention is a factual question. Speer,\n207 N.W. at 582 (intention is “implied from all the facts,” quoting Fehleisen v.\nQuinn, 165 N.W. 213, 215 (1917)). See Langer v. Iowa Beef Packers, Inc., 420 F.2d\n365, 367 & n.4 (8th Cir. 1970) (collecting cases).\n\n The bankruptcy court specifically found that “the method of attachment does\nnot indicate an intent to make the home a permanent accession to the property,” and:\n\n The Court finds—especially in light of the fact that Debtors own the\n home while The Paddock owns the lot and charges Debtors a monthly\n fee under the lease—that the [Ground Lease] does not clearly establish\n the intent to make the home a permanent accession to the real estate.\n\n -4-\n\nThese findings are not clearly erroneous.\n\n The bankruptcy court heard competing testimony about the home’s attachment\nto the ground. Mr. Bennett testified: he had looked behind the skirting that covers\nthe space between the home and ground; the home is placed on pier pads and concrete\nblocks, not a concrete foundation; and, he has raised a pier pad several times to level\nthe home due to ground sinkage. Sarah Slaymaker—The Paddock’s property\nmanager (beginning two years after the home’s installation)—testified: there is a full\nconcrete foundation behind the skirting2 (based on other nearby homes having a\nconcrete foundation); the wheels and axles used to install the home were removed but\nthe underlying structure to which they were attached was probably still there; and,\nmoving the home from its concrete foundation would damage both the home and the\nlot.\n\n The bankruptcy court found Bennett more credible than Slaymaker because of\nhis first-hand knowledge. The Paddock does not challenge this credibility\ndetermination, which there is no reason to disturb. See Dollar v. Smithway Motor\nXpress, Inc., 710 F.3d 798, 806 (8th Cir. 2013) (“A district court’s credibility\ndeterminations in a bench trial . . . are virtually unassailable on appeal.”). Bennett’s\ntestimony sufficiently supports the bankruptcy court’s finding that “the home sits on\npiers and blocks, not on a concrete foundation.”\n\n For the first time in a footnote to its reply brief, The Paddock argues that a\nfederal regulation “renders suspect” the bankruptcy court’s finding “that the piers are\nnot deeply embedded into the ground.” See 24 C.F.R. § 3285.312(b)(1)\n(conventional footings for manufactured homes “must be placed below the frost line\ndepth for the site . . . .”). This court generally does not consider arguments raised for\nthe first time in a reply brief. Cutcliff v. Reuter, 791 F.3d 875, 883 n.3 (8th Cir.\n\n\n 2\n The parties agree the skirting is not concrete. Slaymaker testified that it “looks\nlike plastic.” Bennett testified that it was “[a] faux—fake veneer skirting.”\n -5-\n\n2015). Even if this court considered the argument, the factual record supports the\nbankruptcy court’s finding that “the home is more like a structure on blocks than a\nstructure deeply embedded into the ground.” The court found that the home does not\nhave a foundation. Bennett testified that one pier pad repeatedly sunk into the\nground. The Paddock did not present any evidence about the piers being deeply\nembedded. Its reliance on a federal regulation is irrelevant. The bankruptcy court’s\nstructure-on-blocks finding was not clearly erroneous.\n\n The Paddock also challenges the bankruptcy court’s finding that the home\n“could be removed from the property and would not lose substantial value if it was\nremoved.” However, this finding is supported by the finding that the home is like a\nstructure on blocks, and by Slaymaker’s testimony that the underlying structure used\nto transport it was probably still there. No direct evidence shows that removing the\nhome would be damaging. Slaymaker’s testimony about damage was based on her\n(uncredited) assumption that the home was attached to a concrete foundation.3 The\nphotos in evidence, discussed during Slaymaker’s testimony, do not show how the\nhome is attached to the ground or what is required to move it. The bankruptcy court’s\nno-loss-from-removal finding was not clearly erroneous, as this court is not “left with\nthe definite and firm conviction that a mistake has been committed.” Anderson v.\nBessemer City, 470 U.S. 564, 573 (1985), quoting United States v. U.S. Gypsum Co.,\n333 U.S. 364, 395 (1948). See In re Hixon, 387 F.3d 695, 700 (8th Cir. 2004)\n(“[E]ven greater deference to the bankruptcy court’s factual findings is necessary\nwhere . . . the findings call for an assessment of witness credibility and where the\nrecord contains no contradictory documents or objective evidence.”).\n\n\n 3\n The dissent relies on this (uncredited) testimony to conclude that the home has\na concrete foundation and its removal would cause difficulty or destruction.\nSlaymaker’s testimony was not uncontroverted. Bennett repeatedly testified that the\nhome was not sitting on a concrete foundation. The bankruptcy court explicitly\nfound, after weighing the competing testimony and making a credibility\ndetermination, that the foundation Slaymaker described (and said would be damaged)\nwas not there.\n -6-\n\n Based on the factual findings—the manufactured home sits on piers and blocks,\nis more like a structure on blocks than one deeply embedded in the ground, and can\nbe removed without losing substantial value—the bankruptcy court’s conclusion that\n“the method of attachment does not indicate an intent to make the home a permanent\naccession to the property” is not clearly erroneous. Compare Durband v. Noble, 166\nN.W. 581, 581 (Iowa 1918) (buildings were not fixtures where they were “placed\nupon posts and blocked up,” and could be removed without “difficulty” or “injury to\nthe premises”), with Ford, 340 N.W.2d at 272 (mobile home was a fixture where\nparty making the accession “substantially modified” it, and “[i]t could not be removed\nfrom its present location except in the sense that any permanent home could be”), and\nPeoria Stone & Marble Works v. Sinclair, 124 N.W. 772, 772–73 (Iowa 1910)\n(building was real property where it rested on “stone and brick pillars deeply\nimbedded in the soil”).\n\n The Paddock argues the Ground Lease shows its intent to make the home a\npermanent accession. The lease says that the home is “permanently affixed,” has\n“permanent footings,” and will “be installed as a permanent improvement and\nfixture.” However, as The Paddock admits, the lease also permits the home’s removal\nfrom the property. Before the Bennetts’ loan is paid or refinanced, the lease requires\nThe Paddock’s permission to remove the home. If the loan is paid, title to the home\npasses to the Bennetts by a bill of sale and they may remove it. The Paddock (and\ndissent) emphasize that the 990-year lease term shows an intent to treat the home as\na fixture. But, the lease makes clear that The Paddock continues to own the lot, and\nallows termination on 60-days’ notice. The bankruptcy court’s view of the evidence,\nthat the Ground Lease does not establish an intent to make the home a permanent\naccession, is permissible, and not clearly erroneous. See Anderson, 470 U.S. at 574\n(“Where there are two permissible views of the evidence, the factfinder’s choice\nbetween them cannot be clearly erroneous.”).\n\n The bankruptcy court’s findings distinguish this case from In re Green, 436\nB.R. 91 (Bankr. S.D. Ill. 2010). There, a mobile home was held to be a fixture under\n\n -7-\n\na test like Iowa’s. See In re Green, 436 B.R. at 98. That bankruptcy court found\nsignificant that the debtor “testified that, at the time he signed the mortgage [for the\nmobile home and underlying land], he intended to permanently affix the mobile home\nto the real estate.” Id. Here, the bankruptcy court, based on credibility\ndeterminations, found nothing in the record showed The Paddock’s intent to make the\nmanufactured home a fixture.4\n\n The bankruptcy court’s finding—the Bennetts’ home did not meet Iowa’s\nfixture test and is thus not real property—is not clearly erroneous.\n\n *******\n\n The judgment is affirmed.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372252/", "author_raw": "BENTON, Circuit Judge."}, {"author": "BEAM, Circuit Judge, dissenting", "type": "dissent", "text": "BEAM, Circuit Judge, dissenting.\n\n The evidence establishes that The Paddock, LLC, as landowner, by law,\nsucceeded in subdividing real estate in Johnson County, Iowa, as The Paddock at\nSaddlebrook. This established a community of single-family residential lots and\nblocks available for sale to qualified home buyers and builders. The evidence further\nestablishes that in 2003, The Paddock delivered a single-family residential structure\n\n\n 4\n The Paddock criticizes the bankruptcy court for relying on In re Coleman, 392\nB.R. 767 (B.A.P. 8th Cir. 2008). That Missouri case is not persuasive here. Missouri\nfollows a statute, not common law, to determine whether a manufactured home is\npersonal or real property. See In re Estate of Parker, 25 S.W.3d 611, 616 (Mo. App.\n2000) (holding § 700.111 RSMo abrogated Missouri’s “common law elements of\nconversion of a mobile home to real property”). Regardless, Missouri’s statute is not\nsimilar to Iowa’s common law of fixtures. Compare Coleman, 392 B.R. at 772–73,\napplying § 700.111 RSMo 2005, with Ford, 340 N.W.2d at 271–73. In any event,\nthis court “may affirm the bankruptcy court on any ground supported by the record.”\nIn re Acceptance Ins. Cos., 567 F.3d 369, 376 (8th Cir. 2009).\n\n -8-\n\nfor use and occupancy as a private home at 222 Hackney Court in The Paddock at\nSaddlebrook. Although the evidence is somewhat opaque, it appears this structure\nhad, at least in substantial part, been prefabricated at another location and transported\nover public roadways using two-wheels or two sets of wheels which wheels were\ndetached upon delivery and removed from the structure for its use at The Paddock at\nSaddlebrook. Indeed, there is no evidence that these wheels, or any similar wheels,\nwere ever again employed within a reasonable proximity to the Bennetts' home at\nHackney Court. The Bennetts rented the home from 2003 until April 2007, at which\ntime they purchased the home from The Paddock. The evidence indicates that the\nsale price for the new residence was $111,155 including the cost of a conveyance of\na right of real property possessory interest in the Hackney Court lot. While the\nconveyance was mislabeled \"lease,\" it actually transfers to the Bennetts a fee simple\nabsolute ownership interest in their building lot, \"subject to a condition subsequent.\"\nSee Black's Law Dictionary at 734 (10th ed. 2014).\n\n According to the bankruptcy court's memorandum and order, Mr. Bennett\ntestified that the home, as delivered, was on \"piers and blocks.\"5 Such piers, by\ndefinition, are \"a solid support designed to sustain vertical pressure, in particular.\"\nNew Oxford American Dictionary at 1325 (3d ed. 2010). Further, the record\nindicates that the foundation, as Sarah Slaymaker, The Paddock's property manager\ntestified numerous times, is cement or concrete (which terms the parties and the\nattorneys seem to use interchangeably). Here, although we acknowledge that\nSlaymaker was heard to state on redirect examination that the \"skirting\" covering the\nconcrete or cement foundation supporting the Bennetts' residence \"looked like\nplastic,\" Slaymaker never retracted her other testimony that the residence had a\ncement foundation; that removing the foundational structure would \"damage the\nhome\" and would \"damage or destroy the foundation.\" And, of equal importance, that\nno one had ever \"moved a home out of The Paddock\" before. This particular\n\n 5\n Bennett actually called them \"concrete blocks\" in his testimony, which seems\nan important distinction from simply \"blocks\" as stated by the bankruptcy court. J.A.\n105.\n -9-\n\ntestimony–about damaging the house, the foundation, and that it could not be moved\nby anyone other than a \"house mover\" was uncontroverted. Thus, the bankruptcy\ncourt was clearly erroneous in finding that only Bennett's testimony was credible and\nSlaymaker's was not credible. There can be no argument that the 222 Hackney Court\nresidence was not designed to be a permanent abode for the Bennetts' long and\ncontinuing residence at that location. Or, that it was designed to be a quasi-\npermanent piece of personal property, and as noted below, Iowa law bears this out.\n\n While the majority opinion sets forth the correct test under Iowa law to\ndetermine whether personal property has become a fixture, and thus, real property,\nit misapplied that test and comes to the wrong conclusion. In doing so, the majority\ngives too much deference to the bankruptcy court's clearly erroneous factual\nconclusions. The universally stated test for whether a court's (including a bankruptcy\ncourt) fact finding is \"clearly erroneous\" is when \"although there is evidence to\nsupport it . . . the reviewing court is left with the definite and firm conviction that a\nmistake has been committed.\" In re Kaelin, 308 F.3d 885, 889 (8th Cir. 2002)\n(alteration in original) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573\n(1985)). Because I believe the outcome of the test at issue indicates that the\nstructure in question is real property, I am left with the definite and firm conviction\nthat a mistake has been made, and I dissent.\n\n Here, there is no dispute that the manufactured home is the principal residence\nof the Bennetts. The only dispute is over whether the manufactured home is real\nproperty or personal property. That is an issue to be determined under the laws of the\nstate of Iowa, which is where the home is located, and pursuant to the terms of the\ncontract for purchase. The two key cases are Ford v. Venard, 340 N.W.2d 270 (Iowa\n1983), and Cornell Coll. v. Crain, 235 N.W. 731 (Iowa 1931).\n\n In Ford, the court considered the question of whether a structure that was once\na mobile home was real or personal property. The court noted that Iowa courts, as\nmost notably and clearly set forth by Cornell, have developed a test to decide the\n\n -10-\n\nvexatious question of whether a structure is personal property or whether it has\nbecome a fixture and therefore real property. \"[P]ersonal property becomes a fixture\nwhen: (1) it is actually annexed to the realty, or to something appurtenant thereto; (2)\nit is put to the same use as the realty with which it is connected; and (3) the party\nmaking the annexation intends to make a permanent accession to the freehold.\" Ford,\n340 N.W.2d at 271 (citing Cornell, 235 N.W. at 732). \"The intention of the party\nannexing the improvement is the 'paramount factor' in determining whether the\nimprovement is a fixture.\" Id. at 272 (quotation omitted). In Ford, the Iowa Supreme\nCourt ultimately concluded that the mobile home \"plainly was\" a fixture, because \"[i]t\ncould not be removed from its present location except in the sense that any permanent\nhome could be. . . . [and] it has become an integral part of the real estate.\" Id. at 271-\n72. In Ford all the elements of the various common law and statutory tests were met,\nand the home was deemed to be a real estate fixture. Id. at 272-73. This is because\nthe structure was firmly attached to the realty and had been modified in such a way\nthat removal would essentially destroy the home unless a professional \"house mover\"\nwas employed; the homeowner believed it was part of the realty; and it was on a\nseparate parcel of land, not in a conventional motor home park. Id. at 271-72.\n\n Our task is to apply the three-part Ford test in the instant case. The first prong\nis whether the structure is actually annexed to the realty or to something appurtenant\nthereto. It seems rather clear that the structure in this case is annexed to the realty,\nas the wheels and axles were removed once it was placed on the foundation. Like the\nstructure in Ford, the home could not be moved without a professional home mover.\nThe Bennetts certainly could not pull their pickup up to the structure and drive away\nwith it once their debt is paid off. Slaymaker testified that the home would have to\nbe detached from the cement foundation, that removing the home would destroy the\nfoundation and damage the home, and that no one had ever removed a home from The\nPaddock. Thus, this first factor is in favor of The Paddock.\n\n The second prong, whether the home is put to the same use as realty, also\nfavors The Paddock. Although the real estate taxes are purportedly paid by The\n\n -11-\n\nPaddock because it \"owns\" the underlying land, the land is subject to a 990-year real\nproperty interest lease. Unless Methuselah6 lived at The Paddock, the length of the\nlease effectively gives the residents of the structure ownership of the underlying land.\nAnd, the Bennetts certainly use the structure as a \"home.\" So this prong is undeniably\nin favor of The Paddock.\n\n The third prong–whether the party who annexed the property intended to make\nit a part of the real property–is also in The Paddock's favor. Although there is no\nbasement, the structure is sitting on a cement or concrete foundation. As noted\nabove, the foundation is attached to the ground, and both it and the house would be\ndestroyed if the home was removed. This is key. See Ford, 340 N.W.2d at 272 (\"[A]\nbuilding which cannot be removed without destruction of a substantial part of its\nvalue becomes almost unavoidably an integral part of the real estate.\") (quotation\nomitted). The photographs in the record indicate that these are not mobile home\ntrailers. They are modular homes. In Iowa, all of these things qualify the structure\nin question as a real property fixture. See Peoria Stone & Marble Works v. Sinclair,\n124 N.W. 772, 772–73 (Iowa 1910) (holding that a frame shop resting on stone and\nbrick pillars deeply embedded into the soil was found to be real property); Durband\nv. Noble, 166 N.W. 581, 581 (Iowa 1918) (holding that where the buildings were\n\"respectively placed upon posts and blocked up\" they were not real property because\nthe building could be \"removed from the land without difficulty or trouble, and the\nground restored to its former condition\" (quotation omitted)). The cement or concrete\nfoundation (or blocks and piers or whatever we want to call them) here is embedded\nin the soil, and the building could not be removed from the land without difficulty or\ndestruction, as Slaymaker's uncontroverted testimony indicates. The Paddock did not\nintend for the structures to be moved, but instead made them part of the real property.\n The test for real property under Iowa law clearly favors The Paddock's\ncontention that the structure in question was real property. Accordingly, I dissent.\n ______________________________\n\n 6\n \"Altogether Methuselah lived a total of 969 years, and then he died.\" Genesis\n5:27 (New International Version).\n -12-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372252/", "author_raw": "BEAM, Circuit Judge, dissenting"}]}	BENTON	BEAM	ERICKSON	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4594999/	Published	1	1	0	0	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,595,000	Kimberly MENSIE, Plaintiff-Appellant v. CITY OF LITTLE ROCK, Defendant-Appellee	Kimberly Mensie v. City of Little Rock	2019-02-28	17-1761	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Colloton, Grasz, Gruender", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1761\n ___________________________\n\n Kimberly Mensie\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n City of Little Rock\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Western Division\n ____________\n\n Submitted: September 27, 2018\n Filed: February 28, 2019\n ____________\n\nBefore COLLOTON, GRUENDER, and GRASZ, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\n Kimberly Mensie sued the City of Little Rock (the “City”) after it denied her\napplications for rezoning to open a beauty salon in a residential neighborhood.\nMensie alleges the City discriminated against her on the basis of race and treated her\n\fdifferently from other salon operators in violation of the U.S. Constitution. The\ndistrict court1 granted summary judgment to the City, and we affirm.\n\n I. Background\n\n In 2007, Mensie purchased a house at 310 North Van Buren Street in Little\nRock, Arkansas, intending to live there and also operate a beauty salon from the\npremises. At the time, Mensie did not realize the property was designated only for\n“Single Family” use under the City’s Land Use Plan and zoning ordinance. The\nhouse was located on the middle of the block between B Street to the south and C\nStreet to the north. Under the City’s Land Use Plan, everything along North Van\nBuren Street from B to G Streets was designated for Single Family use. There was\nan area zoned for Single Family and Suburban Office just south of B Street and an\narea zoned for Commercial and Office uses about two blocks south of Mensie’s house\nat the intersection of North Van Buren and West Markham Streets. However,\nMensie’s house was surrounded by single-family homes.\n\n The City’s Planning Commission (“Commission”) and Board of Directors\n(“Board”) subsequently denied Mensie’s applications to rezone her house for use as\na salon.2 Mensie, who is African American, brought this lawsuit under 42 U.S.C.\n§ 1983, alleging the City denied her applications in violation of the Equal Protection\nClause and Due Process Clause by singling her out as a “class of one,”\n\n\n\n 1\n The Honorable James M. Moody, Jr., United States District Judge for the\nEastern District of Arkansas.\n 2\n Mensie submitted two applications. One proposed reclassifying her property\nunder the City’s Land Use Plan from “Single Family” to “Mixed Use.” The other\nproposed rezoning her property from R-3 Single Family to “Planned Development -\nCommercial” (“PD-C”), a designation “intended to accommodate single use\ncommercial developments.” Little Rock Rev. Code § 36-452(3)(a).\n\n -2-\n\fdiscriminating on the basis of race, and acting “based on capricious and arbitrary\nconditions.”\n\n Mensie first sued the City in Arkansas state court in 2008. The case was\ndismissed without prejudice in May 2015 for failure to prosecute. Mensie filed her\ncurrent suit in the same state court in November 2015, and the City removed it to\nfederal district court.3\n\n After discovery, the district court granted the City’s motion for summary\njudgment, concluding Mensie failed to show the City either treated her less favorably\nthan other similarly situated salon operators or denied her applications based on race.\nMensie appeals.\n\n II. Standard of Review\n\n This court reviews a grant of summary judgment de novo, viewing the evidence\nin the light most favorable to the nonmoving party. Barstad v. Murray Cty., 420 F.3d\n880, 883 (8th Cir. 2005). “Summary judgment is appropriate only if there are no\ngenuine issues of material fact and the moving party is entitled to judgment as a\nmatter of law.” Id.; Fed. R. Civ. P. 56(a). “The movant ‘bears the initial\nresponsibility of informing the district court of the basis for its motion,’ and must\nidentify ‘those portions of [the record] . . . which it believes demonstrate the absence\nof a genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d 1031,\n1042 (8th Cir. 2011) (en banc) (alterations in original) (quoting Celotex Corp. v.\nCatrett, 477 U.S. 317, 323 (1986)). “If the movant does so, the nonmovant must\n\n\n 3\n The parties do not dispute on appeal whether Mensie timely filed her current\nsuit under Arkansas’s savings statute, see Ark. Code Ann. § 16-56-126, and we\ndecline to consider this issue sua sponte. See Wood v. Milyard, 566 U.S. 466, 470,\n473 (2012); see also Baker v. Chisom, 501 F.3d 920, 922 (8th Cir. 2007) (applying\nArkansas’s savings statute to § 1983 claims).\n\n -3-\n\frespond by submitting evidentiary materials that set out ‘specific facts showing that\nthere is a genuine issue for trial.’” Id. (quoting Celotex Corp., 477 U.S. at 324). “The\nnonmovant ‘must do more than simply show that there is some metaphysical doubt\nas to the material facts.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio\nCorp., 475 U.S. 574, 586–87 (1986)).\n\n III. Discussion\n\n Mensie argues the City violated her “substantive due process rights” by\ndenying her rezoning applications based at least partially on her race. She also argues\nthe City violated her equal protection rights by discriminating against her as a “class\nof one” in comparison to other similarly situated salons throughout the City. Viewing\nboth of these arguments as equal protection claims,4 we find them to be without merit\nfor the reasons discussed below.\n\n A. Race-Discrimination\n\n Mensie alleges the City’s denial of her rezoning request constituted racial\ndiscrimination in violation of her right to equal protection under the law. To establish\na violation of the Equal Protection Clause under this theory, Mensie is required to\nshow “proof that a [racially] discriminatory purpose has been a motivating factor in\nthe decision.” Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.\n\n 4\n We have recognized that “if a constitutional claim is covered by a specific\nconstitutional provision . . . the claim must be analyzed under the standard\nappropriate to that specific provision, not under the rubric of substantive due\nprocess.” Moran v. Clarke, 296 F.3d 638, 646 (8th Cir. 2002) (en banc) (quoting Cty.\nof Sacramento v. Lewis, 523 U.S. 833, 843 (1998)). Here, Mensie’s claim of race\ndiscrimination is covered by the Equal Protection Clause. See Village of Arlington\nHeights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977). While Mensie\nalso pled a substantive due process claim unrelated to race, she has abandoned that\nclaim on appeal.\n -4-\n\f252, 265–66 (1977). “[D]etermining the existence of a discriminatory purpose\n‘demands a sensitive inquiry into such circumstantial and direct evidence as may be\navailable.’” Clients’ Council v. Pierce, 711 F.2d 1406, 1409 (8th Cir. 1983) (quoting\nRogers v. Lodge, 458 U.S. 613, 618 (1982)). This standard requires examining the\n“totality of the relevant facts,” id., including racially discriminatory impact, historical\nbackground, the sequence of events leading up to the challenged decisions, and\nlegislative or administrative history, especially “contemporary statements by members\nof the decisionmaking body, minutes of its meetings, or reports.” Village of Arlington\nHeights, 429 U.S. at 266–68.\n\n Mensie argues the historical background and relevant sequence of events give\nrise to an inference of racial discrimination here. She notes the City’s Director of\nPlanning and Development opposed the idea “before the process had even begun.”\nShe also observes that the Commission rejected her applications even after she\nincorporated changes recommended by Commission staff in a preliminary meeting.\nSpecifically, Mensie submitted a revised plan clarifying that her property would not\ncontain a dumpster and would comply with the overlay standards of the surrounding\nHillcrest neighborhood. At a hearing before the Commission, Mensie proposed\nseveral more changes on her own initiative, including reducing the number of\nemployees, operating on an appointment-only schedule, and cutting the number of\nparking spaces in a parking lot she planned to pave in her backyard. The Commission\nstill did not approve.\n\n We see no evidence of racial discrimination on these facts, particularly in light\nof the Supreme Court’s decision in Village of Arlington Heights. There, a Chicago\nsuburb (the “Village”) denied an application to rezone a parcel of land from a single-\nfamily to a multiple-family classification for building racially-integrated low- and\nmoderate-income housing. Village of Arlington Heights, 429 U.S. at 255–58. The\nSupreme Court upheld the decision against a challenge under the Equal Protection\nClause, finding no inference of racial discrimination even where the developer\n\n -5-\n\fincorporated every change recommended by the Village’s staff for compliance with\nlocal regulations. Id. at 257, 269–71. The Supreme Court emphasized the property\nhad historically been zoned R-3, it was surrounded by single-family homes, and the\ndeveloper’s application progressed according to usual procedures. Id. at 269–70\n(noting the Village’s Plan Commission even scheduled two additional hearings and\npermitted the developer to supplement its earlier presentation).\n\n Here Mensie’s property was also zoned Single Family in a historically single-\nfamily neighborhood.5 Furthermore, the record indicates her applications progressed\naccording to usual procedures. She met with several City staff members prior to\nsubmitting her applications. See Little Rock Rev. Code § 36-454(b) (requiring a\n“preapplication conference” between the applicant and City staff prior to submitting\na Planned Development application). Commission staff then conducted two written\nanalyses and recommended that the Commission deny Mensie’s proposal. See id.\n§ 36-454(c)(2) (requiring planning staff to review an applicant’s preliminary plan and\nforward a recommendation to the Commission). Mensie then had a timely public\nhearing before the Commission and two timely public hearings on appeal before the\nBoard.6 See id. (requiring a public hearing before the Commission on an applicant’s\npreliminary plan within sixty days after planning staff files its review and\nrecommendation); see also id. § 36-85(a) (authorizing rezoning applicants to appeal\n\n\n 5\n While there was an area of suburban office uses south of B Street, it is\nundisputed this area served as a buffer between commercial uses to the south, at the\nintersection of North Van Buren and West Markham Streets, and residential uses to\nthe north. Further, while Mensie disputes whether two nearby businesses to the north\nof her house were nonconforming uses in operation prior to the effective date of the\ncurrent zoning ordinance, see Little Rock City Code §§ 36-151, 153 (authorizing\nnonconforming uses), it is undisputed neither business was on her block.\n 6\n After the Commission denied Mensie’s applications, the Board on appeal held\nseparate hearings for her proposed amendments to the City’s Land Use Plan and her\nproperty’s zoning designation, respectively.\n -6-\n\fCommission’s denial to the Board for review). Additionally, the changes Mensie\nincorporated at the Commission’s request were merely, in its words, “technical\nissues” to comply with local rules. Put simply, “there is little about the sequence of\nevents leading up to the decision that would spark suspicion.” Village of Arlington\nHeights, 429 U.S. at 269.\n\n The administrative history here supports this conclusion. The Commission\nstaff’s pre-hearing analyses “focused . . . exclusively on the zoning aspects of\n[Mensie’s] petition.” Id. at 270. For instance, Commission staff expressed concern\nthat Van Buren Street had been under pressure in recent years to change from a\nresidential to a commercial corridor. They noted Mensie’s house was located within\nan area covered by the “Hillcrest Neighborhood Action Plan,” which included a goal\nof “no net loss of residential units by demolition or conversion to other uses.” See\nLittle Rock Rev. Code §§ 36-434.10 to 36-434.16 (adopting the Hillcrest overlay\ndistrict into City’s zoning ordinance). They also observed that a suburban office area\nlocated south of Mensie’s property served primarily as a buffer zone. Additionally,\nopposition voiced by several neighbors at three public hearings focused on the\npossibility of increased traffic and a desire to maintain residential zoning in the area.\nSee Village of Arlington Heights, 429 U.S. at 258, 270 (noting that “the zoning\nfactors on which [Village decisionmakers] relied are not novel criteria in the Village’s\nrezoning decisions,” including the reliance of neighbors on maintaining area single-\nfamily zoning and the consistent application of a prior policy treating multi-family\nhousing primarily as a buffer zone).\n\n We find no basis for Mensie’s argument that the City relied on racist “code\nwords” by crediting neighbors’ concerns about the possibility of decreased property\nvalues and increased crime as a result of Mensie’s salon. Mensie notes one Board\nmember who voted to deny Mensie’s appeal later testified that she found the\nneighbors’ opposition persuasive. Mensie then notes the Board ultimately denied her\nproposal by a 4-to-4 vote, making the neighbors’ coded racism a dispositive factor in\n\n -7-\n\fits demise. However, “[f]acially race-neutral statements, without more, do not\ndemonstrate racial animus on the part of the speaker.” Twymon v. Wells Fargo & Co.,\n462 F.3d 925, 934 (8th Cir. 2006). Here, the record indicates her neighbors’\nopposition was based not on Mensie’s mere “presence,” as Mensie argues, but rather\non the commercial nature of her proposal. See Nelson v. City of Selma, 881 F.2d 836,\n839 (9th Cir. 1989) (noting that “[t]he preservation of the character and integrity of\nsingle-family neighborhoods, . . . prevention of traffic congestion and maintenance\nof property values are all legitimate purposes of planning and zoning” (citing Village\nof Belle Terre v. Boraas, 416 U.S. 1, 9 (1974))).\n\n Even if concerns about increased crime in this context could be considered\nracial code words, nothing indicates the City itself was improperly motivated by this\nconcern or by Mensie’s race. The record indicates that only one opponent mentioned\nincreased crime as a concern at any of the hearings. Many others expressed\nopposition based on preventing increased commercialization of the residential\nneighborhood, consistent with the Commission staff’s analysis. The testifying Board\nmember merely said she was persuaded by the “objections of the neighborhood” in\ngeneral as well as by the Commission staff’s recommendation, without any indication\nof discriminatory motive. See Village of Arlington Heights, 429 U.S. at 270 (finding\nno inference of racial discrimination in part where “one member of the Village Board\n[took] the stand at trial” and “[n]othing in her testimony support[ed] an inference of\ninvidious purpose”). We decline to impute any implied racism from the opposing\ntestimony to the City here. See Twymon, 462 F.3d at 934 (“While we are required to\nmake all reasonable inferences in favor of the nonmoving party in considering\nsummary judgment, we do so without resort to speculation.”).\n\n We also reject any argument that we should infer racial opposition in the\noverall comments of Mensie’s neighbors to the City in light of their allegedly hostile\n\n\n\n\n -8-\n\ftreatment toward her when she moved into the neighborhood7 and from the fact City\nofficials allegedly voted against her applications mostly along racial lines. Unlike\nthese allegations, the City’s interest in preserving the neighborhood’s residential\ncharacter from increased commercialization is supported by the record, and this\nprecludes any inference that the City’s decision was racially motivated. See\nGallagher v. Magner, 619 F.3d 823, 833 (8th Cir. 2010) (noting that city’s race-\nneutral explanation for inspecting rental properties disproportionately occupied by\nracial minorities “ha[d] greater support in the record” than any alleged discriminatory\npurpose); see also Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (stating that\n“[m]ere allegations, unsupported by . . . evidence beyond the nonmoving party’s own\nconclusions, are insufficient to withstand a motion for summary judgment”).\n\n Therefore, Mensie’s race-discrimination claim under the Equal Protection\nClause must fail.\n\n B. Class-of-One Discrimination\n\n We next address Mensie’s class-of-one discrimination claim. “The Equal\nProtection Clause requires that the government treat all similarly situated people\nalike.” Barstad, 420 F.3d at 884. Where a plaintiff has not shown discrimination\nbased on membership in a class or group, the Supreme Court’s “cases have\nrecognized successful equal protection claims brought by a ‘class of one,’ where the\nplaintiff alleges that she has been intentionally treated differently from others\nsimilarly situated and that there is no rational basis for the difference in treatment.”\nVillage of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). We have clarified that\nin class-of-one challenges to local zoning decisions, “courts are not entitled to review\n\n\n 7\n Mensie alleges that after she purchased her house, the neighbors refused to\nmake eye contact or speak with her and also made threatening, anonymous phone\ncalls to her.\n -9-\n\fthe evidence and reverse the commission merely because a contrary result may be\npermissible.” Burns v. City of Des Peres, 534 F.2d 103, 108 (8th Cir. 1976). Indeed,\n“[c]ourts are not to assume the role of a ‘super zoning board.’” Id. (quoting Steel Hill\nDev., Inc. v. Town of Sanbornton, 469 F.2d 956, 960 (1st Cir. 1972)).\n\n Instead, we are authorized only “to ascertain whether there has been a\ntransgression upon the property owner’s constitutional rights.” Id. For this reason,\n“[i]dentifying the disparity in treatment is especially important in class-of-one cases.”\nBarstad, 420 F.3d at 884. “A class-of-one plaintiff must therefore provide a specific\nand detailed account of the nature of the preferred treatment of the favored class,\nespecially when the state actors exercise broad discretion to balance a number of\nlegitimate considerations.” Nolan v. Thompson, 521 F.3d 983, 990 (8th Cir. 2008)\n(citation and internal quotation marks omitted). We have said this is a “demanding\nstandard,” particularly given that the “persons alleged to have been treated more\nfavorably must be identical or directly comparable to the plaintiff in all material\nrespects.” Robbins v. Becker, 794 F.3d 988, 996 (8th Cir. 2015) (quoting Reget v.\nCity of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010)).\n\n Mensie fails to meet this standard. She merely asserts on appeal that a number\nof manicurists and beauty salons operated from their homes across the City.\nAlthough Mensie underlined dozens of purported comparators in a roster of local\nsalons that she placed in the record, we agree with the district court that she failed to\nidentify how any were similarly situated in all material respects, including in time,\nlocation, the zoning amendment process, and the City’s Land Use Plan. See id.\n(stating that plaintiffs “fail[ed] to allege and prove facts showing they were similarly\nsituated to other towing and wrecker services, or that those companies were treated\nmore favorably under similar circumstances”).\n\n Mensie also asserts that a number of local salons were located in residential\nand other non-conforming zoning areas or had previously been granted similar\n\n -10-\n\fPlanned Development applications. But in a separate list Mensie offered to support\nthis assertion (showing the zoning classifications of ninety-three area salons), she\nagain fails to explain how any were similarly situated to her proposed salon in all\nmaterial respects. See Nolan, 521 F.3d at 990 (concluding plaintiff’s spreadsheet of\ntwenty other inmates with corresponding details about their offenses, sentences, and\ntime served failed to show similarity in all material respects in determining whether\nthey received more favorable treatment in obtaining parole). While Mensie provides\na more detailed zoning history for ten of these businesses, only four appear to have\npreviously been zoned for residential use. Among these four, each was a\nnonconforming use (or in a nonconforming commercial area) in operation (or\nexistence) prior to being annexed into the City. We thus reject Mensie’s argument\nthat other salons in the City were by nature “necessarily similarly situated.”\n\n Having failed to establish disparate treatment, Mensie’s class-of-one\ndiscrimination claim under the Equal Protection Clause must also fail.\n\n IV. Conclusion\n\n For the reasons set forth above, we affirm the district court’s grant of summary\njudgment to the City.\n\n ______________________________\n\n\n\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372253/", "author_raw": "GRASZ, Circuit Judge."}]}	COLLOTON	GRASZ	GRUENDER	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4595000/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,595,001	Dwain BAGWELL, Plaintiff-Appellant v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee	Dwain Bagwell v. Commissioner, Social Security	2019-02-28	18-2514	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Loken, Grasz, Stras", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-2514\n ___________________________\n\n Dwain Bagwell\n\n lllllllllllllllllllllPlaintiff - Appellant\n\n v.\n\n Commissioner, Social Security Administration\n\n lllllllllllllllllllllDefendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Jonesboro Division\n ____________\n\n Submitted: January 17, 2019\n Filed: February 28, 2019\n ____________\n\nBefore LOKEN, GRASZ, and STRAS, Circuit Judges.\n ____________\n\nGRASZ, Circuit Judge.\n\f Dwain Bagwell appeals the district court’s1 judgment that the Social Security\nAdministration (“SSA”) Commissioner’s decision to deny him disability benefits was\nsupported by substantial evidence. We affirm.\n\n I. Background\n\n In December 2014, Dwain Bagwell applied for disability benefits from the SSA,\nalleging mild intellectual disability, low education, slow learning abilities, and\nmemory problems. After the SSA denied his claim initially and on reconsideration,\nhe requested a hearing before an administrative law judge (“ALJ”). The ALJ found\nBagwell had three severe impairments: arthropathies, obesity, and depressive disorder.\nThe ALJ also found that neither those impairments individually nor the combination\nof them were severe enough to satisfy the criteria for disability benefits under SSA\nregulations. Then, the ALJ concluded Bagwell’s residual functional capacity allowed\nhim to perform light, unskilled work with some further restrictions. Because\ntestimony from a vocational expert indicated such jobs are available in the United\nStates economy, the ALJ found Bagwell was not under a disability as defined by the\nSocial Security Act.\n\n The ALJ’s decision was based, in relevant part, on reviewing reports from\nseveral witnesses. Two of these key witnesses were mental health experts. Dr. Vickie\nCaspall performed a psychological examination of Bagwell at the request of the SSA.\nShe opined that he was moderately depressed but was not functioning in the\nintellectual disability range. At Bagwell’s request, he was also evaluated by Dr.\n\n\n\n\n 1\n The Honorable Beth Deere, United States Magistrate Judge for the Eastern\nDistrict of Arkansas, to whom the case was referred for final disposition by consent\nof the parties pursuant to 28 U.S.C. § 636(c).\n\n -2-\n\fHerman Clements of Hometown Behavioral Health. Dr. Clements diagnosed Bagwell\nwith bipolar disorder and opined that Bagwell had marked mental impairments.2\n\n The Social Security Appeals Council denied Bagwell’s petition for review,\nmaking the ALJ’s decision the Commissioner’s final administrative decision. Bagwell\nfiled a complaint in the Eastern District of Arkansas seeking review. The district court\naffirmed the Commissioner’s decision, and Bagwell timely appealed.\n\n II. Standard of Review\n\n We review de novo the district court’s decision affirming the denial of social\nsecurity benefits and will affirm “if the Commissioner’s decision is supported\nby . . . substantial evidence on the record as a whole.” Ash v. Colvin, 812 F.3d 686,\n689 (8th Cir. 2016) (quoting McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010)).\n“Substantial evidence is less than a preponderance, but is enough that a reasonable\nmind would find it adequate to support the Commissioner’s conclusion.” Id. (quoting\nMcKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). If the record supports two\ninconsistent conclusions, this court must affirm the Commissioner’s choice among\nthose two conclusions. Id. at 689–90.\n\n III. Analysis\n\n The ALJ’s assessment that Bagwell is only moderately intellectually limited,\nrather than intellectually disabled, is supported by substantial evidence in the record.3\n\n 2\n In addition to reviewing those witnesses’ opinions, the ALJ also saw Dr. Kay\nCogbill’s review of Bagwell’s previous psychological assessments. Her report was\npart of the SSA’s two reviews and denials of Bagwell’s petition prior to the ALJ\nhearing. Dr. Cogbill’s review included records from Bagwell’s previous application\nfor disability benefits, but those prior records were not in the ALJ’s record in this\ncase.\n 3\n While Bagwell argues that the ALJ failed to address opinions from Dr. Hope\nGilchrist and Dr. George DeRoeck, this argument misses the mark because those\n\n -3-\n\fDr. Caspall specifically opined that Bagwell’s only mental limitation was a mild form\nof major depressive disorder. She did not find that Bagwell was intellectually\ndisabled. While Dr. Clements found significant mental disabilities, the ALJ rejected\nhis opinion because he appeared to take Bagwell’s complaints at face value without\ntesting for malingering or otherwise complying with SSA standards for ascertaining\ndisability. The ALJ also noted that Bagwell’s mental conditions appeared controllable\nwith medicine, which weighs against a finding of disability.4 Under the applicable\nstandard of review, we cannot see how crediting Dr. Caspall’s opinion over Dr.\nClements’s opinion would make the ALJ’s decision unsupported by substantial\nevidence.5 Even if Bagwell’s arguments against crediting Dr. Caspall’s opinion have\nmerit, failures in Dr. Caspall’s opinion do not mean that the ALJ was required to agree\nwith Dr. Clements’s opinion. At best, Bagwell has shown that the ALJ picked\nbetween two potentially flawed expert opinions in a limited record, which does not\nsatisfy his burden of proof here. Thus, we agree with the district court that the ALJ’s\njudgment was supported by substantial evidence.\n\n Because the ALJ’s decision was supported by substantial evidence, Bagwell’s\nother argument about the ALJ’s failure to consider whether he met the criteria for\n\n\n\n\nopinions were in the prior application records reviewed by Dr. Cogbill, not in the\nALJ’s record in this case.\n 4\n The ALJ admitted Bagwell had expressed financial difficulties in obtaining the\nmedicine, but the ALJ noted that clinics existed where Bagwell could obtain the\nnecessary medication for free. The ALJ also noted that the medicine prescribed by Dr.\nClements was only a 30-day supply with no refills, implying that it was unclear how\npermanently Bagwell needed such medicine.\n 5\n The ALJ discredited testimony from Bagwell’s brother because he appeared\nto uncritically accept Bagwell’s claims. The ALJ also discredited testimony from Dr.\nRodger Troxel because Dr. Troxel was not qualified to testify about mental health.\n\n -4-\n\fintellectual disability in Listing 12.05C has no merit.6 In order to satisfy Listing\n12.05C, as it existed at the time of his application, Bagwell needed to show\n(1) a “significantly subaverage general intellectual functioning with deficits in\nadaptive functioning manifested . . . before age 22,” (2) “[a] valid verbal,\nperformance, or full scale IQ of 60 through 70,” and (3) “a physical or other mental\nimpairment imposing an additional and significant work related limitation of\nfunction.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05 (2016). Even if Bagwell had\na valid IQ score in the record (which the parties dispute), he cannot meet the other\ncriteria for deficits in adaptive functioning or significant work related limitations in\nlight of the ALJ’s findings about his intellectual capacity. The ALJ could not have\nerred by failing to address listings that were unsupported by the record. Boettcher v.\nAstrue, 652 F.3d 860, 863 (8th Cir. 2011) (“There is no error when an ALJ fails to\nexplain why an impairment does not equal one of the listed impairments as long as the\noverall conclusion is supported by the record.”).\n\n IV. Conclusion\n\n We affirm the judgment of the district court that the Commissioner’s decision\nto deny disability benefits was supported by substantial evidence.\n ______________________________\n\n\n\n\n 6\n Listing 12.05 is the name for the intellectual disability category in the list of\nimpairments in SSA’s regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05\n(2016). Subpart C describes a particular set of criteria for demonstrating intellectual\ndisability. See id.\n\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372254/", "author_raw": "GRASZ, Circuit Judge."}]}	LOKEN	GRASZ	STRAS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4595001/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,586,717		United States v. Robert Vederoff	2019-02-01	17-30096	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Fernando J. Gaitan, Jr., * District Judge Opinion by Judge Gaitan * The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation.", "parties": "", "opinions": [{"author": "GAITAN, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 17-30096\n Plaintiff-Appellee,\n D.C. No.\n v. 2:16-cr-00325-\n RSL-1\n ROBERT LAWRENCE VEDEROFF,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the Western District of Washington\n Robert S. Lasnik, District Judge, Presiding\n\n Argued and Submitted November 6, 2018\n Seattle, Washington\n\n Filed February 1, 2019\n\nBefore: M. Margaret McKeown and Michelle T. Friedland,\nCircuit Judges, and Fernando J. Gaitan, Jr., * District Judge\n\n Opinion by Judge Gaitan\n\n\n\n\n \n The Honorable Fernando J. Gaitan, Jr., United States District Judge\nfor the Western District of Missouri, sitting by designation.\n\f2 UNITED STATES V. VEDEROFF\n\n SUMMARY \n\n\n Criminal Law\n\n The panel vacated a sentence and remanded for\nresentencing in a case in which the defendant pleaded guilty\nto being a felon in possession of a firearm.\n\n The panel held that second-degree assault under Wash.\nRev. Code § 9A.36.021(1) is overbroad when compared to\nthe generic definition of aggravated assault because only the\nformer encompasses assault with intent to commit a felony.\nBecause Washington’s second-degree assault statute is\nindivisible, the panel could not apply the modified\ncategorical approach, and therefore concluded that\nWashington second-degree assault does not qualify as a\n“crime of violence” under the enumerated clause of U.S.S.G.\n§ 4B1.2.\n\n The panel held that second-degree murder under Wash.\nRev. Code § 9A.32.050 (2003) is overbroad when compared\nto the generic definition of murder because only the former\ncovers felony murder. Because Washington’s second-\ndegree murder statute is indivisible, the panel could not\napply the modified categorical approach, and therefore\nconcluded that Washington second-degree murder is not a\n“crime of violence” under the enumerated clause of § 4B1.2.\n\n The panel held that second-degree murder under\n§ 9A.32.050 (2003) is overbroad as compared to a generic\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. VEDEROFF 3\n\ncrime of violence because the former imposes liability for\nnegligent or even accidental felony murder. Because the\nWashington statute is indivisible, the panel could not apply\nthe modified categorical approach, and therefore concluded\nthat Washington second-degree murder is not a “crime of\nviolence” under the force/elements clause of § 4B1.2(a)(2).\n\n The panel held that the district court’s sentencing errors\nwere not harmless.\n\n\n COUNSEL\n\nAlan Zarky (argued), Staff Attorney; Mohammad Ali\nHamoudi, Assistant Federal Public Defender; Office of the\nFederal Public Defender, Seattle, Washington; for\nDefendant-Appellant.\n\nHelen J. Brunner (argued), Assistant United States Attorney;\nAnnette L. Hayes, United States Attorney; United States\nAttorney’s Office, Seattle, Washington; for Plaintiff-\nAppellee.\n\n\n OPINION\n\nGAITAN, District Judge:\n\n Robert Vederoff appeals the sentence imposed following\nhis guilty plea to being a felon in possession of a firearm in\nviolation of 18 U.S.C. § 922(g)(1). He challenges the district\ncourt’s findings that his prior convictions for second-degree\nassault and second-degree murder under Washington law\nqualify as “crimes of violence” under section 4B1.2(a) of the\nUnited States Sentencing Guidelines (“U.S.S.G.”). For the\n\f4 UNITED STATES V. VEDEROFF\n\nfollowing reasons, we vacate and remand for further\nproceedings consistent with this Opinion.\n\n I. BACKGROUND\n\n Vederoff was charged with and pled guilty to being a\nfelon in possession of a firearm in violation of 18 U.S.C.\n§ 922(g). 1 As part of his written plea agreement, Vederoff\nacknowledged receiving each of the felony convictions\nlisted in the indictment, including one conviction for second-\ndegree assault and one conviction for second-degree murder,\nboth under Washington law.\n\n Before sentencing, the United States Probation Office\nissued a Presentence Report (“PSR”). The PSR set the base\noffense level at 24, under U.S.S.G. § 2K2.1, concluding that\nVederoff’s prior convictions for second-degree assault and\nsecond-degree murder qualified as “crimes of violence.”\nAfter a three-level downward adjustment for acceptance of\nresponsibility, the PSR set Vederoff’s total offense level at\n21. The PSR calculated Vederoff’s criminal history score as\n13, and his criminal history category as VI. Accordingly,\nVederoff’s recommended Guidelines range was 77 to\n96 months. The probation officer, however, recommended\na 60-month sentence, balancing mitigating and aggravating\nfactors in Vederoff’s history.\n\n Vederoff objected to either of these convictions counting\nas “crimes of violence” under U.S.S.G. § 4B1.2(a). He\nargued that, without the crimes of violence, the base offense\n\n 1\n He was also charged with being a felon in possession of\nammunition, 18 U.S.C. § 922(g), but that charge was dropped pursuant\nto the plea agreement.\n\f UNITED STATES V. VEDEROFF 5\n\nlevel should be 14, and after adjustment for acceptance of\nresponsibility, the Guidelines range would be 27 to\n33 months. 2 Vederoff requested a sentence of 27 months of\nimprisonment, the lowest end of his proposed range. The\ngovernment agreed with the PSR’s crime of violence\nfindings and recommended a sentence of 72 months of\nimprisonment, five months below the low end of the\nGuidelines range if both convictions counted as crimes of\nviolence.\n\n On May 5, 2017, the district court sentenced Vederoff to\n60 months in custody after concluding that both convictions\nwere crimes of violence. In explaining its decision, the\ndistrict court stated:\n\n So on the, you know, the [United States v.\n Johnson, 135 S. Ct. 2551 (2015),] issues —\n and we’re still in a state of flux on this — it\n drives me absolutely nuts as a trial judge to\n think that things like murder and assault with\n a deadly weapon could be conceived as not\n being crimes of violence, but these are highly\n technical rulings from courts that\n predominantly don’t have people who have\n ever been in a trial court, let alone been a\n trial-court lawyer or trial-court judge.\n\n But my analysis of this is that they are both\n countable crimes of violence, and it is an\n\n 2\n This calculation was incorrect: a three-level adjustment for\nacceptance of responsibility is only available for base offenses of 16 or\ngreater. With a base offense level of 14, Vederoff would be entitled to a\ntwo-level adjustment. See U.S.S.G. § 3E1.1(a). The resulting Guideline\nrange would be 30 to 37 months.\n\f6 UNITED STATES V. VEDEROFF\n\n offense level 21, Criminal History Category\n VI, 77 to 96 range. If [defense counsel] is\n correct, it would be a level 14, Criminal\n History Category VI, with a 37 to 46 range.\n\n Either way, looking at the factors, I really\n believe the right sentence is a five-year prison\n term. So I’m going to impose a 60-month\n prison term. It’s either a departure downward\n from a range that’s too high or a departure\n upward from a range that’s too low. But the\n murder and the assault two are, in the Court’s\n opinion, countable under the analysis of\n being a divisible crime in the assault two, and\n that the ways to commit aiding and abetting\n felony murder have to comport with the\n national standard of doing something active\n to join in a felony that’s a serious felony, not\n some sort of hypothetical minor felony. It\n has to be during the commission of a\n dangerous felony or through conduct\n evincing reckless or depraved indifference to\n the serious dangers. But as I say, the range is\n not as important to me as what is the right\n sentence for this individual under these\n circumstances, and I think for the deterrent\n effect and the punishment effect, five years is\n correct for the prison term.[ 3]\n\nVederoff timely appealed his sentence.\n\n\n 3\n The calculation of a 37 to 46 month range was incorrect. As noted,\nthe correct Guideline range if neither conviction counted as a crime of\nviolence was 30 to 37 months. See supra note 2.\n\f UNITED STATES V. VEDEROFF 7\n\n II. JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction pursuant to 28 U.S.C. § 1291. We\nreview de novo whether a predicate state conviction\nconstitutes a crime of violence under the Guidelines. United\nStates v. Robinson, 869 F.3d. 933, 936 (9th Cir. 2017). We\napply a harmless error analysis to Guideline calculations.\nUnited States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th\nCir. 2011).\n\n III. DISCUSSION\n\n Under U.S.S.G. § 2K2.1, Vederoff had a base offense\nlevel of 24 if he had two or more felony convictions that\nqualify as a “crime of violence.” U.S.S.G. § 2K2.1(a)(2). If\nhe had one, his base offense level would be 20, and if he had\nnone, his base offense level would be 14. U.S.S.G.\n§ 2K2.1(a)(4), (6). “For the purposes of this guideline . . .\n‘Crime of violence’ has the meaning given that term in\n§ 4B1.2(a) and Application Note 1 of the Commentary to\n§ 4B1.2.” U.S.S.G. § 2K2.1 cmt. n.1. At the time of\nVederoff’s offense and his sentencing, section 4B1.2(a), the\ncareer offender guideline, defined “crime of violence” as:\n\n any offense under federal or state law,\n punishable by imprisonment for a term\n exceeding one year, that –\n\n (1) has as an element the use, attempted\n use, or threatened use of physical force\n against the person of another, or\n\n (2) is murder, voluntary manslaughter,\n kidnapping, aggravated assault, . . . .\n\f8 UNITED STATES V. VEDEROFF\n\nU.S.S.G. § 4B1.2(a). The first part of this definition is the\n“force/elements clause,” and the second is the “enumerated\nclause.” The commentary clarified that “crime[s] of\nviolence . . . include the offenses of aiding and abetting,\nconspiring, and attempting to commit such offenses.”\nU.S.S.G. § 4B1.2 cmt. n.1.\n\n To determine whether a prior state conviction qualifies\nas a crime of violence, we apply the “categorical approach.”\nRobinson, 869 F.3d at 936; see also Taylor v. United States,\n495 U.S. 575, 600 (1990) (first articulating the approach in\nthe context of the Armed Career Criminal Act’s (“ACCA”)\n“violent felony” provision). Under this approach, we define\nthe scope of the generic federal offense at issue, and then\ncompare its elements to the elements of the state criminal\nstatute. United States v. Arriaga-Pinon, 852 F.3d 1195,\n1198–99 (9th Cir. 2017). If the state statute is identical to or\nnarrower than the generic federal offense, then the predicate\nconviction is a crime of violence. Robinson, 869 F.3d at 936.\nIf the state statute is overbroad (i.e., criminalizes any\nconduct not covered by the generic offense), we must\ndetermine whether the statute is divisible (i.e., whether it has\nalternative elements). Arriaga-Pinon, 852 F.3d at 1199. If\nit is indivisible, the inquiry ends: the predicate conviction is\nnot a crime of violence. If the state statute is divisible, then\nwe apply the “modified categorical approach,” which\npermits examination of the indictment, jury instructions,\nand/or plea agreements to determine which of the alternative\nelements were the basis of the conviction. Id. at 1199–1200.\nThe state conviction is a crime of violence if those elements\nserving as the basis of the conviction are identical to or\nnarrower than the elements of the generic federal offense.\nThroughout, “we must presume that the conviction rested\nupon [nothing] more than the least of th[e] acts criminalized”\n\f UNITED STATES V. VEDEROFF 9\n\nby the state statute. Moncrieffe v. Holder, 569 U.S. 184,\n191–92 (2013) (alterations in original) (citation omitted).\n\nA. The Washington crime of second-degree assault does\n not qualify as a “crime of violence” under U.S.S.G.\n § 4B1.2.\n\n Under Washington law,\n\n [a] person is guilty of assault in the second\n degree if he or she, under circumstances not\n amounting to assault in the first degree:\n\n (a) Intentionally assaults another and\n thereby recklessly inflicts substantial\n bodily harm; or\n\n (b) Intentionally and unlawfully causes\n substantial bodily harm to an unborn\n quick child by intentionally and\n unlawfully inflicting any injury upon the\n mother of such child; or\n\n (c) Assaults another with a deadly\n weapon; or\n\n (d) With intent to inflict bodily harm,\n administers to or causes to be taken by\n another, poison or any other destructive\n or noxious substance; or\n\n (e) With intent to commit a felony,\n assaults another; or\n\n (f) Knowingly inflicts bodily harm which\n by design causes such pain or agony as to\n\f10 UNITED STATES V. VEDEROFF\n\n be the equivalent of that produced by\n torture; or\n\n (g) Assaults another by strangulation or\n suffocation.\n\nWash. Rev. Code § 9A.36.021(1). In Robinson, we held that\nsecond-degree assault in Washington is not a crime of\nviolence under the force/elements clause. 869 F.3d at 937–\n41. However, Robinson did not decide whether it is a crime\nof violence under the enumerated clause. 4 We must do so\nhere.\n\n For the purposes of defining federal assault, the\ngovernment urges us to adopt the following definition of\n“aggravated assault” found in an unrelated section of the\nGuidelines:\n\n a felonious assault that involved (A) a\n dangerous weapon with intent to cause bodily\n injury (i.e., not merely to frighten) with that\n weapon; (B) serious bodily injury;\n (C) strangling, suffocating, or attempting to\n strangle or suffocate; or (D) an intent to\n commit another felony.\n\nU.S.S.G. § 2A2.2, cmt. n.1 (emphasis added). We decline to\ndo so. The introductory provisions of the Guidelines warn\nthat, while definitions “also may appear in other sections,”\nthose definitions “are not designed for general applicability.”\nU.S.S.G. § 1B1.1, cmt. n.2. Instead, “their applicability to\n 4\n While Robinson addressed an earlier version of the Guidelines, the\nforce/elements clause at issue there was same. 869 F.3d at 937–41.\n“Aggravated assault” was not listed in the enumerated clause in the\nearlier version of the Guidelines.\n\f UNITED STATES V. VEDEROFF 11\n\nsections other than those expressly referenced must be\ndetermined on a case by case basis.” Id. In other cases,\nwhen a section of the Sentencing Guidelines did not plainly\nidentify the elements of a federal offense, we looked to the\ngeneric definition of that offense, rather than importing a\nspecific definition located in an unrelated section of the\nGuidelines. See United States v. Gonzalez-Perez, 472 F.3d\n1158, 1161 (9th Cir. 2007); see also United States v.\nEsparza-Herrera, 557 F.3d 1019, 1022–25 (9th Cir. 2009)\n(defining the generic offense of “aggravated assault” for the\npurposes of U.S.S.G. § 2L1.2 by reference to the Model\nPenal Code, treatises, and various state laws, rather than\nusing U.S.S.G. § 2A2.2); United States v. Garcia-Jimenez,\n807 F.3d 1079, 1085–87 (9th Cir. 2015) (clarifying the\ngeneric offense of “aggravated assault” for the purposes of\nU.S.S.G. § 2L1.2 by reference to the criminal statutes of a\nsubstantial majority of U.S. jurisdictions).\n\n Accordingly, in this case we compare the definition of\n“aggravated assault” under Washington law to the generic\ndefinition of aggravated assault. The least culpable means\nwithin the Washington statute is assault with intent to\ncommit a felony, Wash. Rev. Code § 9A.36.021(1)(e), so we\nmust determine whether the generic definition of aggravated\nassault covers such conduct. Our review of the common\nlaw, 5 the Model Penal Code, treatises, and the laws of the\nother states, see Esparza-Herrera, 557 F.3d at 1022–25,\ncompels the conclusion that generic aggravated assault does\nnot include assault with intent to commit a felony. The\nModel Penal Code defines aggravated assault as assault\ncausing or attempting to cause bodily injury “under\n\n 5\n Common law does not aid our interpretation here because\n“aggravated assault” is a statutory creation. See 2 Wayne R. LaFave,\nSubstantive Criminal Law § 16.1(b) (3d ed. 2018).\n\f12 UNITED STATES V. VEDEROFF\n\ncircumstances manifesting extreme indifference to the value\nof human life” or with a deadly weapon. Model Penal Code\n§ 211.1(2). It does not include assault with intent to commit\nanother felony.\n\n With respect to the laws of the states, only six states\n(including Washington) and the District of Columbia include\nassault with intent to commit any felony within their assault\nstatutes (whether titled “aggravated” assault or not). 6 In\n11 states, aggravated assault includes assault with the intent\nto commit a narrower set of specific felonies 7 or assault\ncommitted during the commission of a felony. 8 In 33 states,\naggravated assault never includes assault with the intent to\ncommit a felony. 9 Second-degree assault under Washington\n\n 6\n Fla. Stat. § 784.021; Kan. Stat. Ann. § 21-5412; Mass. Gen. Laws\nch. 265, § 29; Mich. Comp. Laws § 750.87; N.M. Stat. Ann. § 30-3-2;\nWash. Rev. Code § 9A.36.021; D.C. Code §§ 22-403, 22-404.01.\n\n 7\n Cal. Penal Code §§ 220, 245; Ga. Code Ann. § 16-5-21; N.C. Gen.\nStat. § 14-32; 11 R.I. Gen. Laws §§ 11-5-1, 11-5-2; Va. Code Ann.\n§ 18.2–51.2.\n 8\n Ala. Code § 13A-6-20; Del. Code Ann. tit. 11, § 613; Iowa Code\n§ 708.3; N.Y. Penal Law § 120.10; S.C. Code Ann. § 16-3-600; W. Va.\nCode § 61-2-10.\n\n 9\n Alaska Stat. § 11.41.200; Ariz. Rev. Stat. Ann. § 13-1204; Ark.\nCode Ann. § 5-13-204; Colo. Rev. Stat. § 18-3-202; Conn. Gen. Stat.\n§ 53A-59; Haw. Rev. Stat. § 707-711; Idaho Code § 18-905; 720 Ill.\nComp. Stat. 5/12-2; Ind. Code § 35-42-2-1.5; Ky. Rev. Stat. Ann.\n§ 508.010; La. Stat. Ann. §§ 14:34, 14:34.7; Me. Rev. Stat. Ann. tit. 17-\nA, § 208; Md. Code Ann., Crim. Law § 3-202; Minn. Stat. §§ 609.02,\n609.221, 609.222, 609.223, 609.2233; Miss. Code Ann. § 97-3-7; Mo.\nRev. Stat. § 565.050; Mont. Code Ann. § 45-5-202; Neb. Rev. Stat.\n§§ 28-308, 28-309; Nev. Rev. Stat. § 200.471; N.H. Rev. Stat. Ann.\n§ 631:1, 631:2; N.J. Stat. Ann. § 2C:12-1; N.D. Cent. Code § 12.1-17-\n02; Ohio Rev. Code Ann. § 2903.12; Okla. Stat. tit. 21, § 646; Or. Rev.\n\f UNITED STATES V. VEDEROFF 13\n\nlaw clearly covers a broader range of conduct than generic\naggravated assault. We have previously concluded that\nWashington’s second-degree assault statute is indivisible,\nRobinson, 869 F.3d at 941, so we cannot apply the modified\ncategorical approach here. Contrary to the conclusion\nreached by the district court, second-degree assault under\nWashington law is not a “crime of violence” under U.S.S.G.\n§ 4B1.2.\n\nB. The Washington crime of second-degree murder does\n not qualify as a “crime of violence” under U.S.S.G.\n § 4B1.2.\n\n At the time of Vederoff’s offense, Washington law\ndefined second-degree murder as when:\n\n (a) With intent to cause the death of another\n person but without premeditation, he or she\n causes the death of such person or of a third\n person; or\n\n (b) He or she commits or attempts to commit\n any felony, including assault, other than\n those enumerated in RCW 9A.32.030(1)(c)\n [Washington’s first-degree murder statute],\n and, in the course of and in furtherance of\n such crime or in immediate flight therefrom,\n he or she, or another participant, causes the\n death of a person other than one of the\n participants; except that in any prosecution\n\n\nStat. §§ 163.175, 163.185; 18 Pa. Cons. Stat. § 2702; S.D. Codified Laws\n§ 22-18-1.1; Tenn. Code Ann. § 39-13-102; Tex. Penal Code Ann.\n§ 22.02; Utah Code Ann. § 76-5-103; Vt. Stat. Ann. tit. 13, § 1024; Wis.\nStat. § 940.19; Wyo. Stat. Ann. § 6-2-502.\n\f14 UNITED STATES V. VEDEROFF\n\n under this subdivision (1)(b) in which the\n defendant was not the only participant in the\n underlying crime, if established by the\n defendant by a preponderance of the\n evidence, it is a defense that the defendant:\n\n (i) Did not commit the homicidal act or in\n any way solicit, request, command,\n importune, cause, or aid the commission\n thereof; and\n\n (ii) Was not armed with a deadly weapon,\n or any instrument, article, or substance\n readily capable of causing death or\n serious physical injury; and\n\n (iii) Had no reasonable grounds to believe\n that any other participant was armed with\n such a weapon, instrument, article, or\n substance; and\n\n (iv) Had no reasonable grounds to believe\n that any other participant intended to\n engage in conduct likely to result in death\n or serious physical injury.\n\nWash. Rev. Code § 9A.32.050 (2003). We must now\ndetermine whether a conviction under this statute is a crime\nof violence under either the enumerated clause or\nforce/elements clause of U.S.S.G. § 4B1.2.\n\n 1. Enumerated clause\n\n We have not adopted a definition for generic murder.\nAfter surveying the Model Penal Code, dictionary\ndefinitions, and state laws, the Third Circuit defined generic\n\f UNITED STATES V. VEDEROFF 15\n\nmurder as “causing the death of another person either\nintentionally, during the commission of a dangerous felony,\nor through conduct evincing reckless and depraved\nindifference to serious dangers posed to human life.” United\nStates v. Marrero, 743 F.3d 389, 401 (3d Cir. 2014),\nabrogated on other grounds by Johnson v. United States,\n135 S. Ct. 2551 (2015); see also United States v. Castro-\nGomez, 792 F.3d 1216, 1217 (10th Cir. 2015) (citing\napprovingly to Marrero). We adopt that definition here.\n\n The least culpable means of committing second-degree\nmurder in Washington is under the felony murder provision,\nso we must determine whether generic murder also covers\nsuch conduct. Under Washington law, the underlying felony\ncan be any felony—unlike felony murder in the Third\nCircuit’s definition of generic murder, it is not limited to\ndangerous felonies. Washington’s felony murder provision\nis an outlier among the states: seven do not impose felony\nmurder liability at all. Guyora Binder, Making the Best of\nFelony Murder, 91 B.U. L. Rev. 403, 440 (2011) (citing to\nArkansas, Hawaii, Kentucky, Michigan, New Hampshire,\nNew Mexico, and Vermont). In the jurisdictions that do\nimpose felony murder liability, unlike Washington, a\nmajority enumerate the predicate felonies in their statute.\nSee id. at 450 n.262 (citing to 18 U.S.C. § 1111 and Alaska,\nArizona, Colorado, Connecticut, District of Columbia,\nIdaho, Indiana, Iowa, Kansas, Louisiana, Maine, Nebraska,\nNew Jersey, New York, North Dakota, Ohio, Oregon,\nPennsylvania, South Dakota, Tennessee, Utah, West\nVirginia, Wisconsin, and Wyoming). In the jurisdictions\nwithout exhaustively enumerated predicate felonies, almost\nall require that the predicate offense be a dangerous felony.\nSee id. at 466–82 (discussing Alabama, California,\nDelaware, Georgia, Illinois, Maryland, Massachusetts,\nMinnesota, Missouri, Montana, Nevada, North Carolina,\n\f16 UNITED STATES V. VEDEROFF\n\nOklahoma, Rhode Island, South Carolina, Texas, and\nVirginia). Only three states (including Washington) allow\nfelony murder to be predicated on non-enumerated offenses\nlacking a dangerousness requirement. See id. at 478\n(explaining that Florida and Mississippi are the two other\njurisdictions). Furthermore, the Model Penal Code limits\nfelony murder to deaths resulting from conduct involving\ncertain specified dangerous offenses. Model Penal Code\n§ 210.2(1)(b).\n\n The government insists that any concerns regarding the\nbreadth of the statute are hypothetical. See Gonzales v.\nDuenas-Alvarez, 549 U.S. 183, 193 (2007) (requiring “a\nrealistic probability, not a theoretical possibility, that the\nState would apply its statute to conduct that falls outside the\ngeneric definition of a crime”). Facial overbreadth like that\nhere, however, is a basis for finding a statute overbroad. See\nUnited States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)\n(en banc) (holding that where “a state statute explicitly\ndefines a crime more broadly than the generic definition, no\n‘legal imagination,’ is required to hold that a realistic\nprobability exists that the state will apply its statute to\nconduct that falls outside the generic definition of the crime”\n(citing Duenas-Alvarez, 549 U.S. at 193)).\n\n Washington’s second-degree murder statute is therefore\noverbroad when compared with the definition of generic\nmurder, as well as the Model Penal Code and the laws of\nother jurisdictions. We next turn to whether this statute is\ndivisible. Because the plain language of the statute does not\nresolve this question, we look to state decisional law.\nRobinson, 869 F.3d at 938. Washington courts have\nconcluded that the statute is indivisible, and we adopt their\ninterpretation here. See, e.g., State v. Berlin, 947 P.2d 700,\n705–06 (Wash. 1997) (holding that this statute defines a\n\f UNITED STATES V. VEDEROFF 17\n\n“single crime, which can be committed by alternative\nmeans” and therefore, “the State is not required to elect\nbetween the alternative means of committing second degree\nmurder”); see also State v. Lizarraga, 364 P.3d 810, 828\n(Wash. Ct. App. 2015) (concluding that this statute contains\nalternative means, not alternative elements). As above, we\ncannot apply the modified categorical approach. Contrary to\nthe conclusion reached by the district court, second-degree\nmurder under Washington law is not a crime of violence\nunder the enumerated clause of U.S.S.G. § 4B1.2(a)(2).\n\n 2. Force/elements clause\n\n The government argues for the first time on appeal that\nsecond-degree murder qualifies as a crime of violence under\nthe force/elements clause. We need not determine whether\nit has waived or forfeited this claim, because it is apparent\nthat the argument fails on the merits. The generic “crime of\nviolence” includes the following elements: (i) the crime has\n“as an element the use, attempted use, or threatened use of\nphysical force against [a] person,” (ii) the “physical force”\nmust be “violent” or otherwise “capable of causing physical\npain or injury to another person,” and (iii) the “use of force\nmust be intentional, not just reckless or negligent.” U.S.S.G.\n§ 4B1.2(a)(1); United States v. Dixon, 805 F.3d 1193, 1197\n(9th Cir. 2015) (defining “violent felony” under ACCA’s\nforce/elements clause); United States v. Ladwig, 432 F.3d\n1001, 1005 n.9 (9th Cir. 2005) (noting that requirements for\nthe ACCA’s “violent felony” and the Guidelines’ “crime of\nviolence” are “identical”). On the other hand, Washington\nlaw imposes liability for negligent or even accidental felony\nmurder. See, e.g., State v. Leech, 790 P.2d 160, 164 (Wash.\n1990) (“The purpose of the felony murder rule is to deter\nfelons from killing negligently or accidentally by holding\nthem strictly responsible for killings they commit.”). The\n\f18 UNITED STATES V. VEDEROFF\n\nstatute is therefore overbroad as compared to a generic crime\nof violence. As noted above, we cannot apply the modified\ncategorical approach because this statute is indivisible.\nSecond-degree murder under Washington law is not a crime\nof violence under the force/elements clause of U.S.S.G.\n§ 4B1.2(a)(2). 10\n\nC. The sentencing errors were not harmless.\n\n Even when the district court indicates it would impose\nthe same sentence regardless of the proper Guidelines range,\nwe have held that “[a] mistake in calculating the\nrecommended Guidelines sentencing range is a significant\nprocedural error that requires us to remand for\nresentencing.” Munoz-Camarena, 631 F.3d at 1030. “[T]he\ndistrict court must correctly calculate the recommended\nGuidelines sentence and use that recommendation as the\n‘starting point and the initial benchmark.’ . . . [T]he\nrecommended Guidelines range must ‘be kept in mind\nthroughout the process.’” Id. (citations omitted). We\nrequire that the “district court [ ] start with the recommended\nGuidelines sentence, adjust upward or downward from that\npoint, and justify the extent of the departure from the\nGuidelines sentence.” Id. (citation omitted). “A district\ncourt’s mere statement that it would impose the same above-\nGuidelines sentence no matter what the correct calculation\ncannot, without more, insulate the sentence from remand,\n\n\n 10\n Because we conclude that Vederoff’s convictions for second-\ndegree murder and second-degree assault do not constitute crimes of\nviolence, we need not determine whether accomplice liability under\nWashington law is categorically broader than federal aiding and abetting\nliability, under the reasoning in United States v. Valdivia-Flores,\n876 F.3d 1201, 1207-09 (9th Cir. 2017), such that no Washington\nconviction qualifies as a crime of violence.\n\f UNITED STATES V. VEDEROFF 19\n\nbecause the court’s analysis did not flow from an initial\ndetermination of the correct Guidelines range.” Id. at 1031.\n\n Here, it appears that the district court started with the\npresumption that a 60-month sentence was the correct one,\nand it attempted to justify it as either a downward departure\nfrom the Guidelines calculation he accepted at sentencing or\nan upward departure from the Guidelines calculation\nadvocated by defense counsel. Having now determined that\nthe proper Guideline range would be 30 to 37 months, we\ncannot say that the district court’s incorrect calculation of the\nproper Guideline range was harmless. The explanation\ngiven by the district court does not explain why the court\nimposed a sentence nearly double the Guideline range. Nor\ndoes it demonstrate that the district court would impose the\nsame sentence if the correct Guidelines range were “kept in\nmind throughout the process.” Id. at 1030 (citation omitted).\nMoreover, the explanation provided by the district court\ndoes not account for the amount or direction of the departure;\nthe mitigating factors discussed by the district court could\nalso have warranted a downward variance from the proper\nGuideline range. This case must therefore be remanded for\nresentencing with the correct Guidelines range in mind.\nUnited States v. Brown, 879 F.3d 1043, 1051 (9th Cir. 2018)\n(“The use of an incorrect starting point and the failure to\nkeep the proper Sentencing Guidelines range in mind as the\nsentencing decision was made constituted ‘a significant\nprocedural error,’ and the case must be remanded for\nresentencing.” (quoting Munoz-Camarena, 631 F.3d at\n1030)).\n\n SENTENCE VACATED, REMANDED FOR\nRESENTENCING.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363970/", "author_raw": "GAITAN, District Judge:"}]}	M MARGARET MCKEOWN	MICHELLE T FRIEDLAND	FERNANDO J GAITAN JR	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586717/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,586,718		Shane Horton v. City of Santa Maria	2019-02-01	15-56339	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Sharon L. Gleason,* District Judge.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n SHANE HORTON, by his Guardian Ad No. 15-56339\n Litem Yvonne Horton,\n Plaintiff-Appellee, D.C. No.\n 2:14-cv-06135-\n v. SJO-PJW\n\n CITY OF SANTA MARIA; SANTA\n MARIA POLICE DEPARTMENT; OPINION\n ANDREW BRICE,\n Defendants-Appellants.\n\n\n Appeal from the United States District Court\n for the Central District of California\n S. James Otero, District Judge, Presiding\n\n Argued and Submitted February 15, 2018\n Pasadena, California\n\n Filed February 1, 2019\n\n Before: Marsha S. Berzon and Jay S. Bybee, Circuit\n Judges, and Sharon L. Gleason,* District Judge.\n\n Opinion by Judge Berzon;\n Dissent by Judge Bybee\n\n \n The Honorable Sharon L. Gleason, United States District Judge for\nthe District of Alaska, sitting by designation.\n\n2 HORTON V. CITY OF SANTA MARIA\n\n SUMMARY\n\n\n Civil Rights\n\n The panel reversed in part and affirmed in part the district\ncourt’s order denying summary judgment to defendants in an\naction brought pursuant to 42 U.S.C. § 1983 and California\nlaw by a pretrial detainee who alleged that defendants\nviolated his Fourteenth Amendment right to be safeguarded\nfrom injury and his state law right to medical care while in\ncustody.\n\n After being arrested, plaintiff was detained in a temporary\nholding cell and left unattended for around half an hour,\nduring which time he attempted suicide, causing permanent\nand severe injury. With his mother acting as guardian ad\nlitem, plaintiff filed suit alleging, in part, that defendants\nwere deliberately indifferent to his safety because they failed\nto take appropriate action after plaintiff’s mother had warned\na police officer over the phone that plaintiff was suicidal.\n\n The panel held that defendant Officer Brice was entitled\nto qualified immunity as a matter of law because a\nreasonable officer would not have known that failing to\nattend to plaintiff immediately after the phone call would be\nunlawful under the law at the time of the incident. The panel\ntherefore reversed the district court’s denial of summary\njudgment in favor of Officer Brice on the § 1983 claim.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n HORTON V. CITY OF SANTA MARIA 3\n\n The panel next held that it lacked jurisdiction to review\nthe district court’s denial of summary judgment in favor of\nthe municipal defendants on the § 1983 claim. The panel\nnoted that when a municipal defendant’s motion for summary\njudgment is “inextricably intertwined” with issues presented\nin the individual officers’ qualified immunity appeal, this\ncourt may exercise pendent party appellate jurisdiction. The\npanel held that in this case appellate resolution of the\nofficer’s appeal did not “necessarily” resolve the pendent\nclaim of municipal liability. The panel noted that its holding\nthat Officer Brice was entitled to qualified immunity did not\npreclude the possibility that a constitutional violation may\nnonetheless have taken place, including as a result of the\ncollective acts or omissions of Santa Maria Police\nDepartment officers. The panel remanded to permit the\ndistrict court to consider the claims in light of this court’s\nrecent guidance in Castro v. County of Los Angeles, 833 F.3d\n1060 (9th Cir. 2016) (en banc), and Gordon v. County of\nOrange, 888 F.3d 118, 1125–26 (9th Cir. 2018).\n\n Finally, the panel affirmed the district court’s denial of\nsummary judgment to defendants on the state law claim\nbrought pursuant to California Government Code § 845.6,\nconcluding that there was a genuine issue of material fact as\nto liability under state law.\n\n Dissenting in part, Judge Bybee joined the majority’s\nholding that Office Brice was entitled to qualified immunity\nfor plaintiff’s deliberate-indifference claim under 42 U.S.C.\n§ 1983 and that the panel lacked jurisdiction over the\nmunicipal liability claim. Judge Bybee would have reversed\nthe district court’s denial of summary judgment on the state\nlaw claim, because he believed that there was no basis under\nCalifornia law for subjecting Officer Brice to suit.\n\n4 HORTON V. CITY OF SANTA MARIA\n\n COUNSEL\n\nTimothy T. Coates (argued) and Jonathan H. Eisenman,\nGreines Martin Stein & Richland LLP, Los Angeles,\nCalifornia; Kristine L. Mollenkopf, Assistant City Attorney,\nSanta Maria, California; Bruce D. Praet, Ferguson Praet &\nSherman, Santa Ana, California; for Defendants-Appellants.\n\nMartin N. Buchanan (argued), Law Offices of Martin N.\nBuchanan, San Diego, California; Rafael Gonzalez and Jared\nM. Katz, Mack Staton Mullen & Henzel LLP, Santa Barbara,\nCalifornia; Joseph Robert Finnerty and Robert W. Finnerty,\nGirardi Keese, Los Angeles, California; for Plaintiff-\nAppellee.\n\n\n OPINION\n\nBERZON, Circuit Judge:\n\n This case concerns the attempted suicide of a jailed\npretrial detainee. Shane Horton was arrested for slashing an\nacquaintance’s car tire and taken to the local police\ndepartment, where he was detained in a temporary holding\ncell. Left unattended for around half an hour while the officer\nin charge spoke to his mother and completed paperwork,\nHorton removed his belt, fed it through the cell door bars, and\nhanged himself, causing permanent and severe brain damage.\n\n With his mother acting as guardian ad litem, Horton\nbrought suit under 42 U.S.C. § 1983 and California law. He\ncontends that the City of Santa Maria, the Santa Maria Police\nDepartment, and several individual officers violated his\nFourteenth Amendment right to be safeguarded from injury\n\n HORTON V. CITY OF SANTA MARIA 5\n\nand his state law right to medical care while in custody. We\nreverse the district court’s denial of qualified immunity on the\n§ 1983 claims as to Officer Andrew Brice, conclude that we\nlack jurisdiction to review the denial of summary judgment\non the § 1983 claims as to the municipal defendants, and\naffirm the district court’s denial of summary judgment on the\nstate law claims.\n\n I. Factual and Procedural History\n\n In the months leading up to his arrest, eighteen-year-old\nHorton had given his mother reason to be concerned. He\nused drugs, including marijuana, “Molly” (a pure form of 3,4-\nMethylenedioxymethamphetamine), and phencyclidine\n(PCP), and contemplated suicide. On December 13, 2012, he\ntook PCP and “started freaking out.” He extinguished\ncigarettes on his own face and hands, punched his fist through\na window, tried to cut his wrist with a piece of broken glass,\nheld a kitchen knife pointed at his throat, and, his mother\nunderstood, threatened to kill himself. That night, he was\nadmitted to the emergency room, where he was initially held\nas a suicide risk. But he specifically denied to hospital staff\nany suicidal ideation, and the doctors came to suspect “that\n[his problem] was mostly drugs.” Horton was discharged the\nmorning of December 14, 2012, after an emergency room\nphysician and a member of the county’s Crisis and Recovery\nEmergency Services (“CARES”) team agreed that he was not\nsuicidal.\n\n Approximately two weeks later, on the morning of\nDecember 29, 2012, Horton and his girlfriend became\ninvolved in a physical altercation. As his girlfriend was\ndriving away with a friend, Horton pulled out a folding knife\nand slashed the tire of the friend’s car.\n\n6 HORTON V. CITY OF SANTA MARIA\n\n Officers Andrew Brice and Duane Schneider soon arrived\non the scene and found Horton. Horton admitted to slashing\nthe tire, pointed the police to the knife, and remained calm\nand cooperative as the officers arrested him for misdemeanor\nvandalism.\n\n Officer Brice stayed to interview Horton’s girlfriend. She\ndisclosed that Horton had hit her several times in the past,\nchased her with a knife, and stabbed a friend in the leg. She\nalso revealed that he had made comments about killing police\nand sympathizing with the suspects in recent mass homicides.\n\n While Officer Brice was speaking to Horton’s girlfriend,\nOfficer Schneider transported Horton to the police station,\nwhere he patted Horton down, confiscated his wallet and\niPod, and placed him in a temporary holding cell. Officer\nSchneider did not remove Horton’s jewelry or belt. As\nOfficer Schneider prepared to leave, Horton said he was\nfeeling anxious and “would really like to speak to someone”\n— “not a therapist. Even you.” As they talked, Horton\nexplained to Officer Schneider that it had been “a really,\nreally, really rough three weeks straight.” He described his\nrecent drug use and the window-breaking incident, and said\nthat he “had the shit beat out of me fucking thousands of\ntimes.” At one point, Officer Schneider asked if he had any\nmedical problems; Horton responded, “No, sir. Not that I\nknow of. I’m real healthy as I’m aware. I’m just — besides\nfeeling anxious right now and I hate being locked in a box\n. . . . I don’t like being in a cell.”\n\n HORTON V. CITY OF SANTA MARIA 7\n\n Eventually, Officer Schneider left, stating that he would\n“[p]robably do a psych or something.”1 He instructed Horton\nto wave at the security camera if he needed anything. A few\nminutes later, another police officer asked Horton if he had\nany medical problems; Horton again said he did not.\n\n Approximately an hour and a half later, Officer Brice\nreturned to the police station. Officer Brice spoke to Horton\nprivately in an interview room, explaining that Horton’s\ngirlfriend and her friend both said that Horton slapped the\ngirlfriend, and reporting that she had a mark on her consistent\nwith that allegation. Officer Brice said that Horton’s\ngirlfriend had been granted a restraining order against him for\none week, that he would be charged with felony domestic\nviolence, and that he had the option to post bail. At one point\nduring the conversation, Officer Brice asked Horton if he had\nany medical conditions, and Horton once again replied, “No,\nsir.”\n\n At the end of the interview, Officer Brice brought Horton\nback to the holding cell and gave him the opportunity to call\nhis mother, Yvonne Horton.2 Horton told his mother, “I’m in\njail right now. I’m going to get booked and go to [the main\ncounty jail in] Goleta. You can choose to be there, get me out\non bail or not. . . . I would appreciate it [if you came to get\nme out on bail], but it is up to you.” Yvonne apparently said\nshe would not bail him out, and he ended the conversation by\nsaying, “It’s okay, Mom. I’m sorry . . . . All right. I love\n\n\n 1\n Officer Schneider presumably meant that he was considering\nordering a psychiatric evaluation of Horton.\n 2\n We use “Yvonne” in this opinion to distinguish the mother from her\nson.\n\n8 HORTON V. CITY OF SANTA MARIA\n\nyou.” Before hanging up, Yvonne requested to speak\nprivately to Officer Brice.\n\n Officer Brice left Horton in the cell and, out of Horton’s\nearshot, called Yvonne back. Officer Brice spoke with\nYvonne for ten to fifteen minutes, during which time, she\nstated in her deposition, she relayed “everything” about the\nDecember 13, 2012 incident — Horton’s use of drugs, the\ncigarette marks on his face and hands, the knife he held to his\nthroat, his hospitalization with an initial “5150” hold for risk\nof suicide,3 the CARES official’s conclusion that he could be\ndischarged because his conduct was due to drugs not suicidal\nideation, and her disagreement with that conclusion. Yvonne\ntestified that she also told Officer Brice that her son was\ndepressed and suicidal, that she was really worried about him,\nand that she believed he could be helped in the judicial\nsystem. And she recounted that she instructed Officer Brice\nto “please, watch him, please look after him, please.”4\n\n\n\n\n 3\n California Welfare and Institutions Code § 5150 authorizes qualified\nofficers or clinicians to involuntarily take into custody a person who, “as\na result of a mental health disorder, is a danger to others, or to himself or\nherself, or gravely disabled.” Cal. Welf. & Inst. Code § 5150.\n 4\n Officer Brice denies that Yvonne ever used the terms “suicidal” or\n“tried to kill himself.” He testified that Yvonne instead told him that\nCARES declined to keep Horton “because they believed his actions were\ndrug induced,” which she was upset about, and that she was equivocating\non whether to bail him out, because she felt her son would be safer in jail\nthan out. However, in deciding this qualified immunity interlocutory\nappeal, we rely on the record as most favorable to Horton, see Saucier v.\nKatz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by\nPearson v. Callahan, 555 U.S. 223, 236 (2009), and so disregard Officer\nBrice’s testimony to the extent it contradicts that of Yvonne.\n\n HORTON V. CITY OF SANTA MARIA 9\n\n Officer Brice explained to Yvonne that he was getting\nready to transport Horton to jail, which Yvonne understood\nto mean that they would be transporting him “very shortly.”\nIn response to Yvonne’s pleas to look after her son, Officer\nBrice reassured her that “[h]e’s safe here.” When asked at\ndeposition whether she ever told the police officer he had to\ngo check on Horton immediately, she said, “I didn’t think that\nI would have to do that. . . . I was under the impression, after\nI spoke to [him] in that way, that he would go back and check\non him.”\n\n Instead of going immediately back to the cell, Officer\nBrice first went to complete the paperwork necessary to\ntransport Horton to jail and prepare the transport van. When\nOfficer Brice went to get Horton, approximately 27 minutes\nafter leaving him,5 Officer Brice discovered Horton hanging\nfrom the cell door, not moving. Officer Brice immediately\ncalled for assistance, administered CPR, and waited for the\nparamedics to arrive to transport him to the hospital. Horton\nsurvived the suicide attempt but suffered prolonged anoxia,6\nresulting in severe and permanent brain damage.\n\n\n 5\n As previously noted, Officer Brice’s conversation with Horton’s\nmother lasted for approximately ten to fifteen minutes. In the first few\nminutes of that conversation, Horton removed the belt he was wearing,\nstrung it through the cell door bars, looped it around his neck, and\nslumped down. Approximately eight minutes before the phone call ended,\nHorton was no longer seen moving in the security camera video. Another\ntwelve to seventeen minutes elapsed after the call ended before Officer\nBrice returned to Horton’s cell and found him hanging.\n 6\n Anoxia refers to a restriction in oxygen flow to the brain. The\nlonger the period of oxygen deprivation, the more severe the brain damage\nand “the lower the chances of a full or meaningful recovery.” Daniels v.\nWoodford, 428 F.3d 1181, 1194 n.18 (9th Cir. 2005).\n\n10 HORTON V. CITY OF SANTA MARIA\n\n With his mother acting as guardian ad litem, Horton filed\nsuit in October 2014 against the City of Santa Maria, the\nSanta Maria Police Department, Officer Brice, Officer\nSchneider, and other officers, claiming (1) negligence and\n(2) § 1983 liability on the part of the individual officer\ndefendants, (3) liability on the part of the municipal\ndefendants, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658\n(1978), and (4) liability under California Government Code\n§ 845.6 on the part of all defendants.\n\n The district court granted summary judgment to all\ndefendants on the state law negligence claim and to all\nofficers except Officer Brice on the § 1983 claims. As to\nOfficer Brice, the district court held that there is a genuine\nissue of fact regarding whether Officer Brice acted with\ndeliberate indifference to Horton’s safety after speaking with\nhis mother, and denied him qualified immunity. The court\nalso denied summary judgment to the municipal defendants\non Horton’s § 1983 claim that those defendants failed to\ndevelop and adhere to a written policy regarding suicide\ndetection and prevention; failed to develop and adhere to\nwritten policies regarding the identification and evaluation of\nmentally disordered detainees; and failed adequately to train\ntheir officers on such policies. Finally, the district court\ndenied summary judgment to Officer Brice and the municipal\ndefendants on the claim under California Government Code\n§ 845.6, but granted summary judgment on that claim to the\nother individual officers. Officer Brice and the municipal\ndefendants timely appealed. See Mitchell v. Forsyth,\n472 U.S. 511, 530 (1985).\n\n HORTON V. CITY OF SANTA MARIA 11\n\n II. Discussion\n\n A. Section 1983 Claim Against Officer Brice\n\n The district court concluded that there is a genuine issue\nof fact regarding whether Officer Brice acted with deliberate\nindifference to Horton’s safety after speaking with his\nmother, and denied the officer qualified immunity. Qualified\nimmunity protects government officials from liability for civil\ndamages unless their conduct violates “clearly established\nstatutory or constitutional rights of which a reasonable person\nwould have known.” Harlow v. Fitzgerald, 457 U.S. 800,\n818 (1982). Plaintiffs bringing § 1983 claims against\nindividual officers therefore must demonstrate that (1) a\nfederal right has been violated and (2) the right was clearly\nestablished at the time of the violation. Pearson v. Callahan,\n555 U.S. 223, 232 (2009). We may “exercise [our] sound\ndiscretion in deciding which of the two prongs of the\nqualified immunity analysis should be addressed first.” Id. at\n236. Here, we begin with the second, “clearly established”\nprong, for reasons that will appear.\n\n1. Clearly Established Law\n\n “A clearly established right is one that is sufficiently clear\nthat every reasonable official would have understood that\nwhat he is doing violates that right.” Isayeva v. Sacramento\nSheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017) (quoting\nMullenix v. Luna, 136 S. Ct. 305, 308 (2015)). At the time of\nthe events in this case, the generally applicable standard\nestablished that officers who act with deliberate indifference\nto the serious medical need of a pretrial detainee violated the\ndetainee’s constitutional rights under the Due Process Clause\nof the Fourteenth Amendment. See, e.g., Conn v. City of\n\n12 HORTON V. CITY OF SANTA MARIA\n\nReno, 591 F.3d 1081, 1090–91 (9th Cir. 2010), vacated,\n563 U.S. 915 (2011), opinion reinstated in relevant part,\n658 F.3d 897 (9th Cir. 2011).\n\n Under Ninth Circuit law at the time of the incident,\nFourteenth Amendment claims that officers acted with\ndeliberate indifference to the medical needs of a pretrial\ndetainee were governed by the same “deliberate indifference”\nstandard as Eighth Amendment claims for failure to prevent\nharm to convicted prisoners. See Simmons v. Navajo County,\n609 F.3d 1011, 1017 (9th Cir. 2010), overruled in part by\nCastro v. County of Los Angeles, 833 F.3d 1060 (9th Cir.\n2016) (en banc); Clouthier v. County of Contra Costa,\n591 F.3d 1232, 1241–43 (9th Cir. 2010), overruled by Castro,\n833 F.3d 1060. That standard provided that an officer was\nliable for deliberate indifference only if he “kn[ew] of and\ndisregard[ed] an excessive risk to inmate health or safety” —\nthat is, if he was “aware of facts from which the inference\ncould be drawn that a substantial risk of serious harm exists”\nand actually drew the inference. Simmons, 609 F.3d at 1017\n(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).\n“Deliberate indifference thus require[d] an objective risk of\nharm and a subjective awareness of that harm.” Conn,\n591 F.3d at 1095. (As we shall explain, that partially\nsubjective standard has since been revised to an entirely\nobjective standard for pretrial detainees. See Gordon v.\nCounty of Orange, 888 F.3d 1118, 1125–26 (9th Cir. 2018);\nCastro, 833 F.3d at 1068–71; infra pp. 16–18).\n\n Two principles inform our clearly established law inquiry\nin this case. First, the qualified immunity inquiry “must be\nundertaken in light of the specific context of the case, not as\na broad general proposition.” Saucier, 533 U.S. at 201; see\nalso Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“We have\n\n HORTON V. CITY OF SANTA MARIA 13\n\nrepeatedly told courts . . . not to define clearly established law\nat a high level of generality.”). It is therefore critical whether\nour case law had, at the time of the events in this case,\nsufficiently clarified when a detainee’s imminent risk of\nsuicide was substantial enough to require immediate\nattention.\n\n Second, in Estate of Ford v. Ramirez-Palmer, we\nrecognized that deliberate indifference claims “depend in part\non a subjective test that does not fit easily with the qualified\nimmunity inquiry,” which is an objective inquiry. 301 F.3d\n1043, 1049 (9th Cir. 2002). Estate of Ford concluded that\neven where the clearly established legal standard requires\ndeliberate indifference, the qualified immunity inquiry should\nconcentrate on the objective aspects of the constitutional\nstandard. That is because “a reasonable prison official\nunderstanding that he cannot recklessly disregard a\nsubstantial risk of serious harm, could know all of the facts\nyet mistakenly, but reasonably, perceive that the exposure in\nany given situation was not that high.” Id. at 1050. We held\nthat “[i]n these circumstances, [an officer] would be entitled\nto qualified immunity” under the deliberate indifference\nstandard. Id.\n\n Thus, Horton must show that, given the available case law\nat the time of his attempted suicide, a reasonable officer,\nknowing what Officer Brice knew, would have understood\nthat failing to check on Horton immediately after the phone\ncall with Yvonne presented such a substantial risk of harm to\nHorton that the failure to act was unconstitutional. We turn to\nthe directly applicable case law now, which is sparse.\n\n At the time of Horton’s incident, we had held that officers\nwho failed to provide medical assistance to a detainee should\n\n14 HORTON V. CITY OF SANTA MARIA\n\nhave known that their conduct was unconstitutional in two\ninstances, neither of which resemble the facts in this case.\nSee Clouthier, 591 F.3d at 1244–45; Conn, 591 F.3d at 1098.\n\n Clouthier held that a mental health specialist who failed\nto take adequate precautions to protect a detainee from\ncommitting suicide was not entitled to qualified immunity.\n591 F.3d at 1245. The specialist knew that the detainee was\nsuicidal, that he had attempted suicide multiple times, and\nthat another staff member had placed the detainee in a suicide\nsmock and warned that he needed to be “constantly\nmonitored throughout the day to ensure his safety.” Id. at\n1244. Nevertheless, the specialist removed the detainee from\nregular suicide monitoring and instructed officers to return\nhis regular clothes and bedding, which he eventually used to\ncommit suicide. Id. at 1245. Under these facts, we\nconcluded that “a reasonable mental health professional could\nnot have thought it was lawful to remove key suicide\nprevention measures put in place by a prior Mental Health\nstaff member.” Id.7\n\n In Conn, we denied qualified immunity at the summary\njudgment stage to officers who, while transporting a detainee,\nobserved her wrap a seatbelt around her neck in an apparent\nattempt to choke herself and who threatened to commit\nsuicide. 591 F.3d at 1098. The transporting officers did not\ntake the detainee to a medical center or alert subsequent\n\n 7\n Clouthier also held that a prison deputy’s knowledge of the\ndetainee’s past suicide attempts and present suicidal tendency was\n“insufficient to allow a jury to conclude that [the deputy] knew Clouthier\nwas suicidal and deliberately ignored that risk.” 591 F.3d at 1247. Because\nthat holding was on the subjective knowledge prong of the deliberate\nindifference standard, it is not directly relevant to Estate of Ford’s\nobjective reasonable official inquiry.\n\n HORTON V. CITY OF SANTA MARIA 15\n\nofficers to the behavior; she then committed suicide. Id. We\nconcluded that “[w]hen a detainee attempts or threatens\nsuicide en route to jail, it is obvious that the transporting\nofficers must report the incident to those who will next be\nresponsible for her custody and safety.” Id. at 1102.8\n\n The facts of Clouthier and Conn do not at all resemble\nthis case. Officer Brice’s interactions with Horton began with\nhis initial arrest, during which Horton remained cooperative.\nOfficer Brice also spoke with Horton’s girlfriend, who\ninformed him of Horton’s previous violent episodes, but did\nnot indicate any present suicidal intentions. At the jail,\nOfficer Brice asked Horton if he was having any medical\nproblems, to which Horton responded in the negative.\n\n Officer Brice did know that Horton, according to his\nmother, had been suicidal two weeks before the incident and\nthat his mother thought he remained a suicide risk.\n\n Based on these facts, which are taken in the light most\nfavorable to Horton, a reasonable officer would not have\nknown that failing to attend to Horton immediately would be\nunlawful under the law at the time of the incident. Horton did\nnot attempt suicide in the presence of Officer Brice, as the\ndetainee did in Conn. 591 F.3d at 1102. Nor, as was the case\nin Clouthier, had he attempted suicide multiple times and\nbeen deemed such a risk that medical specialists placed\n\n\n 8\n While Conn did not cite expressly to Estate of Ford, it did cite to\nClouthier and did apply an objective test. See Conn, 591 F.3d at 1102\n(“The relevant, dispositive inquiry in determining whether a right is\nclearly established is whether it would be clear to a reasonable officer that\nhis conduct was unlawful in the situation he confronted.” (quoting\nSaucier, 533 U.S. at 202)).\n\n16 HORTON V. CITY OF SANTA MARIA\n\nsignificant suicide prevention measures in place, measures\nremoved by the defendant. 591 F.3d at 1245. In short,\nwhether or not Officer Brice was in fact deliberately\nindifferent to a substantial risk that Horton would attempt\nsuicide in the time before he was checked, there was no case\nlaw at the time of the incident clearly establishing that a\nreasonable officer should have perceived the substantial risk.9\n\n In short, applying Estate of Ford, the case law at the time\nof Horton’s attempted suicide was simply too sparse, and\ninvolved circumstances too distinct from those in this case, to\nestablish that a reasonable officer would perceive a\nsubstantial risk that Horton would imminently attempt\nsuicide. We therefore reverse the district court’s denial of\nsummary judgment on qualified immunity as to Officer Brice.\n\n2. The Current Deliberate Indifference Standard\n\n Since the incident in this case took place, this court has\nannounced a new liability standard governing Fourteenth\nAmendment failure-to-protect claims by pretrial detainees.\nCastro v. County of Los Angeles held that, in light of the\nSupreme Court’s decision in Kingsley v. Hendrickson, 135 S.\nCt. 2466 (2015), Fourteenth Amendment failure-to-protect\n\n\n 9\n Nor was there law at the time in other courts clearly establishing that\na reasonable officer would have known that failing to immediately check\nup on Horton would have been unlawful. “In the absence of binding\nprecedent, we look to whatever decisional law is available to ascertain\nwhether the law is clearly established for qualified immunity purposes,\nincluding decisions of state courts, other circuits, and district courts.”\nBoyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004) (citation and\ninternal quotation marks omitted). We have not found other cases applying\nthe objective qualified immunity inquiry prescribed by Estate of Ford to\nfacts similar to Horton’s case.\n\n HORTON V. CITY OF SANTA MARIA 17\n\nclaims must be analyzed under a purely objective standard.\nCastro, 833 F.3d at 1068–71. Under Castro, we ask whether\nthere was “a substantial risk of serious harm to the plaintiff\nthat could have been eliminated through reasonable and\navailable measures that the officer did not take, thus causing\nthe injury that the plaintiff suffered.” Id. at 1070. There is no\nseparate inquiry into an officer’s subjective state of mind.\n\n We have recently recognized that Castro’s objective\ndeliberate indifference standard extends to Fourteenth\nAmendment claims by pretrial detainees for violations of the\nright to adequate medical care. See Gordon, 888 F.3d at\n1125–26. This objective standard would therefore guide our\nanalysis of whether a constitutional violation occurred here,\nwere we to reach that question. But it has no direct bearing\non the question of whether Officer Brice would have known\nthat a failure to immediately check on Horton violated a\nclearly established right at the time of the incident.\n\n As the pre-Castro standard is no longer applicable, no\npurpose would be served for future cases from delineating the\napplication of that standard to the constitutional merits of this\ncase. The two-step qualified immunity procedure “is\nintended to further the development of constitutional\nprecedent,” and we may decide “whether that procedure is\nworthwhile in particular cases.” Pearson, 555 U.S. at 237,\n242. We therefore tend to address both prongs of qualified\nimmunity where the “‘two-step procedure promotes the\ndevelopment of constitutional precedent’ in an area where\nthis court’s guidance is . . . needed.” Mattos v. Agarano, 661\nF.3d 433, 440 (9th Cir. 2011) (en banc) (quoting Pearson,\n555 U.S. at 236); see also Thompson v. Rahr, 885 F.3d 582,\n590 (9th Cir. 2018) (determining that a constitutional\nviolation occurred before holding that the officer was entitled\n\n18 HORTON V. CITY OF SANTA MARIA\n\nto qualified immunity so that “[g]oing forward, . . . the law is\nclearly established in this scenario”). Here, Castro and\nGordon have established the law going forward, and further\ndelineation of the pre-Castro standard would serve little\npurpose, as it is no longer applicable. We therefore confine\nour inquiry to the second qualified immunity prong —\nwhether the constitutional right at issue was “clearly\nestablished” at the time of the alleged violation.\n\n B. Section 1983 Claim Against Municipal Defendants\n\n As to the denial of summary judgment in favor of the\nmunicipal defendants on Horton’s § 1983 claims, we lack\njurisdiction over the municipal defendants’ appeal of that\norder.\n\n Monell established that municipalities can be liable for\ninfringement of constitutional rights, under certain\ncircumstances. 436 U.S. at 690–95. In particular,\nmunicipalities may be liable under § 1983 for constitutional\ninjuries pursuant to (1) an official policy; (2) a pervasive\npractice or custom; (3) a failure to train, supervise, or\ndiscipline; or (4) a decision or act by a final policymaker. A\nmunicipality may not, however, be sued under a respondeat\nsuperior theory. Id. at 693–95. A plaintiff must therefore\nshow “deliberate action attributable to the municipality [that]\ndirectly caused a deprivation of federal rights.” Bd. of Cty.\nComm’rs v. Brown, 520 U.S. 397, 415 (1997). “Where a\ncourt fails to adhere to rigorous requirements of culpability\nand causation, municipal liability collapses into respondeat\nsuperior liability.” Id.\n\n Although the requisites for municipal liability under\n§ 1983 can be stringent, municipalities sued under § 1983,\n\n HORTON V. CITY OF SANTA MARIA 19\n\nunlike individuals, are not entitled to immunity, qualified or\notherwise, and so, unlike individuals, can never be immune\nfrom trial.10 The denial of summary judgment to a municipal\ndefendant on a Monell claim is therefore no different from the\ndenial of any ordinary motion for summary judgment, and so\nis not immediately appealable. See Collins v. Jordan,\n110 F.3d 1363, 1366 n.1 (9th Cir. 1996); Henderson v.\nMohave County, 54 F.3d 592, 594 (9th Cir. 1995).\n\n There is, however, one caveat to this rule. When a\nmunicipal defendant’s motion for summary judgment is\n“inextricably intertwined” with issues presented in the\nindividual officers’ qualified immunity appeal, this court may\nexercise pendent party appellate jurisdiction. See Huskey v.\nCity of San Jose, 204 F.3d 893, 903–05 (9th Cir. 2000). In\nthis context, the “inextricably intertwined” concept is a\nnarrow one. “[A] pendent appellate claim can be regarded as\ninextricably intertwined with a properly reviewable claim on\ncollateral appeal only if the pendent claim is coterminous\n\n\n 10\n The collateral order doctrine allows for appeals from a narrow\ncategory of interlocutory orders that do not fully resolve an action. See\nCohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–47 (1949)\n(holding that certain interlocutory decisions could be final for purposes of\n28 U.S.C. § 1291). Denials of qualified immunity are among that\ncategory. The qualified immunity defense shields government officials\nfrom the costs and distractions of litigation and not just from liability. See\nMitchell, 472 U.S. at 526 (holding that the denial of qualified immunity\nis immediately appealable, as officials enjoy “an entitlement not to stand\ntrial or face the other burdens of litigation, conditioned on the resolution\nof the essentially legal question whether the conduct of which the plaintiff\ncomplains violated clearly established law”). Therefore, even though\nappellate review of a denial of qualified immunity would be possible after\na final judgment, immediate appeal is permitted to protect the right of\nofficials to be free from the burdens of litigation. Municipalities do not\nenjoy any parallel right to be shielded from such burdens.\n\n20 HORTON V. CITY OF SANTA MARIA\n\nwith, or subsumed in, the claim before the court on\ninterlocutory appeal — that is, when the appellate resolution\nof the collateral appeal necessarily resolves the pendent claim\nas well.” Id. at 905 (citation omitted). Here, appellate\nresolution of the collateral appeal does not “necessarily”\nresolve the pendent claim, for several reasons.\n\n First, as we have explained, our qualified immunity\ndetermination with respect to Officer Brice rests solely on the\n“clearly established” law prong; we do not reach the question\nof whether Officer Brice’s actions gave rise to a\nconstitutional violation. “[A] municipality may be liable if an\nindividual officer is exonerated on the basis of the defense of\nqualified immunity, because even if an officer is entitled to\nimmunity a constitutional violation might still have\noccurred.” Gibson v. County of Washoe, 290 F.3d 1175, 1186\nn.7 (9th Cir. 2002), overruled on other grounds by Castro,\n833 F.3d 1060. That is, the district court could still conclude\nthat Officer Brice did commit a constitutional violation under\nthe now-applicable standard and, if the other requisites of\nMonell liability are met, hold the municipality liable.\n\n Second, although the district court granted summary\njudgment in favor of the individual defendants other than\nOfficer Brice on the ground that there was insufficient\nevidence they committed a constitutional violation, the\ndistrict court could reconsider those summary judgments in\nlight of the new, purely objective standard for Fourteenth\nAmendment failure-to-protect claims, which we announced\nafter the district court issued its order. See Castro, 833 F.3d\nat 1068–70. Further, the district court’s grants of summary\njudgment as to the individual officers other than Officer Brice\nwere not appealable, see 28 U.S.C. § 1291; Way v. County of\nVentura, 348 F.3d 808, 810 (9th Cir. 2003), and therefore\n\n HORTON V. CITY OF SANTA MARIA 21\n\ncannot be assumed to be correct. As a result, the district court\ncould conclude that municipal constitutional violations\noccurred involving the actions of officers other than Officer\nBrice.\n\n Third, municipal defendants may be liable under § 1983\neven in situations in which no individual officer is held liable\nfor violating a plaintiff’s constitutional rights. As we have\npreviously acknowledged, constitutional deprivations may\noccur “not . . . as a result of actions of the individual officers,\nbut as a result of the collective inaction” of the municipal\ndefendant. Fairley v. Luman, 281 F.3d 913, 917 (9th Cir.\n2002). “If a plaintiff establishes he suffered a constitutional\ninjury by the City, the fact that individual officers are\nexonerated is immaterial to liability under § 1983,” regardless\nof whether their exoneration is “on the basis of qualified\nimmunity, because they were merely negligent, or for other\nfailure of proof.” Id. at 917 & n.4.11 Here, a reasonable jury\n\n\n 11\n Other circuits apply the same principle in Monell cases. See Barrett\nv. Orange Cty. Human Rights Comm’n, 194 F.3d 341, 350 (2d Cir. 1999)\n(“[M]unicipal liability for constitutional injuries may be found to exist\neven in the absence of individual liability, at least so long as the injuries\ncomplained of are not solely attributable to the actions of named\nindividual defendants.”); Fagan v. City of Vineland, 22 F.3d 1283, 1292\n(3d Cir. 1994) (“[A]n underlying constitutional tort can still exist even if\nno individual police officer violated the Constitution. . . . If it can be\nshown that the plaintiff suffered [an] injury, which amounts to deprivation\nof life or liberty, because the officer was following a city policy reflecting\nthe city policymakers’ deliberate indifference to constitutional rights, then\nthe City is directly liable under section 1983 for causing a violation of the\nplaintiff’s Fourteenth Amendment rights.”); Anderson v. City of Atlanta,\n778 F.2d 678, 686 (11th Cir. 1985) (“Monell . . . and its progeny do not\nrequire that a jury must first find an individual defendant liable before\nimposing liability on local government.”); Garcia v. Salt Lake County,\n768 F.2d 303, 310 (10th Cir. 1985) (“Monell does not require that a jury\n\n22 HORTON V. CITY OF SANTA MARIA\n\nmight be able to conclude that Horton suffered a\nconstitutional deprivation “as a result of the collective\ninaction” of the Santa Maria Police Department, id. at 917, or\nof officers’ adherence to departmental customs or practices,\nsee, e.g., Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143\n(9th Cir. 2012); Long v. County of Los Angeles, 442 F.3d\n1178, 1185–86 (9th Cir. 2006).\n\n For example, taking the facts in the light most favorable\nto the plaintiff, a jury might find that the Santa Maria Police\nDepartment failed to ensure compliance with its written\npolicy of removing belts from detainees. The department’s\npolicy manual indicated that arresting or booking officers\n“should” remove jackets, belts, and shoes. But, according to\nOfficer Schneider, the “should” was understood to be\noptional and, before December 29, 2012, when the incident\noccurred, the usual practice was not to remove belts. An\nindependent audit of the Santa Maria Police Department,\nconducted shortly before the incident for unrelated reasons,\nconfirmed that “many SMPD members had only a passing\nknowledge of Department policies,” and that custody\npractices were “loose.”\n\n Second, a reasonable jury might find that the Police\nDepartment failed to assure proper monitoring of its security\ncameras. Officer Schneider twice told Horton that, if he\nneeded anything, he could simply wave at the security\ncameras and an officer would come over. But no officer\napparently observed Horton looping his belt through the cell\ndoor and hanging from it for over twenty minutes before\nOfficer Brice returned to his cell.\n\n\nfind an individual defendant liable before it can find a local governmental\nbody liable.”).\n\n HORTON V. CITY OF SANTA MARIA 23\n\n We do not decide whether any of these specific acts or\nomissions, or any other, if proven, would give rise to a\nmunicipal constitutional violation. Rather, our inquiry into\nthe Monell claims at this stage is purely jurisdictional. For\nthat purpose, we conclude that our holding that Officer Brice\nis entitled to qualified immunity does not preclude the\npossibility that a constitutional violation may nonetheless\nhave taken place, including as a result of the collective acts or\nomissions of Santa Maria Police Department officers.\n\n In sum, the pendent Monell claim is not inextricably\nintertwined with a properly reviewable collateral appeal, as\nour resolution of Officer Brice’s appeal from the denial of\nsummary judgment on qualified immunity does not\n“necessarily” resolve Horton’s Monell claim. Huskey,\n204 F.3d at 905. We therefore have no jurisdiction to review\nthe denial of summary judgment as to the municipal\ndefendants at this stage of the proceedings.\n\n C. State Law Claim Against All Defendants\n\n Finally, Officer Brice and the municipal defendants\ncontend they are entitled to immunity on Horton’s state law\nclaim. Under California law, prison officials generally cannot\nbe sued for failing to provide medical care to a prisoner,\nunless the official knows, or reasonably should know, that the\nprisoner requires immediate medical care. California\nGovernment Code § 845.6 provides:\n\n Neither a public entity nor a public employee\n is liable for injury proximately caused by the\n failure of the employee to furnish or obtain\n medical care for a prisoner in his custody; but,\n except as otherwise provided by Sections\n\n24 HORTON V. CITY OF SANTA MARIA\n\n 855.8 and 856, a public employee, and the\n public entity where the employee is acting\n within the scope of his employment, is liable\n if the employee knows or has reason to know\n that the prisoner is in need of immediate\n medical care and he fails to take reasonable\n action to summon such medical care.\n\nCal. Gov’t Code § 845.6. Notably, under this statute, there is\nno analogue to the second prong of federal qualified\nimmunity. Also, in contrast with Monell liability, California\nlaw allows for vicarious liability of a municipality whose\nemployee violates the statute when acting within the scope of\nemployment. See Cal. Gov’t Code § 815.2.\n\n The district court denied summary judgment to Officer\nBrice and the municipal defendants on Horton’s § 845.6\nclaims, concluding that a reasonable jury could find that\nOfficer Brice had reason to know Horton faced a substantial\nrisk of attempting suicide and failed to take reasonable action\nto summon immediate medical care.\n\n One threshold matter: We have jurisdiction over the\ndenial of summary judgment as to the state law claims. For\nstate law immunity claims denied before trial, “the\navailability of an appeal depends on whether, under state law,\nthe immunity functions as an immunity from suit or only as\na defense to liability.” Liberal v. Estrada, 632 F.3d 1064,\n1074 (9th Cir. 2011). “A denial of summary judgment is\nimmediately appealable when the immunity is an immunity\nfrom suit . . .” Id. Section 845.6 confers immunity from suit,\nnot only from liability, on public entities and public\nemployees for injuries caused by the failure to provide\n\n HORTON V. CITY OF SANTA MARIA 25\n\nmedical care. Castaneda v. Dep’t of Corr. & Rehab.,\n212 Cal. App. 4th 1051, 1070–71 (Ct. App. 2013).\n\n Reviewing the denial of summary judgment on the state\nlaw immunity issue de novo, see, e.g., Hansen v. Dep’t of\nTreasury, 528 F.3d 597, 600 (9th Cir. 2007), and construing\nthe facts in the light most favorable to Horton, the nonmoving\nparty, see Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126,\n1131–32 (9th Cir. 1997), we hold that there is a genuine issue\nof material fact as to liability on the state law claims.\n\n “In order to state a claim under § 845.6, a prisoner must\nestablish three elements: (1) the public employee knew or had\nreason to know of the need (2) for immediate medical care,\nand (3) failed to reasonably summon such care.” Jett v.\nPenner, 439 F.3d 1091, 1099 (9th Cir. 2006).\n\n Officer Brice and the municipal defendants offer several\narguments for their immunity under § 845.6. First, they\ncontend that Officer Brice’s alleged failure promptly to\nsummon medical care is tantamount to a failure to diagnose,\nfor which defendants are immune from liability under\nCalifornia Government Code § 855.8(a). See Cal. Gov’t\nCode § 845.6 (excepting from liability claims of injury\nresulting from diagnosing or failing to diagnose mental\nillness). We disagree. The scope of liability for the failure to\nsummon medical care under § 845.6 is broader than the scope\nof immunity for the failure to diagnose, prescribe, or\nadminister treatment under § 855.8.12 See Johnson v. County\n\n\n 12\n California Government Code § 855.8 provides:\n\n (a) Neither a public entity nor a public employee acting\n within the scope of his employment is liable for injury\n\n26 HORTON V. CITY OF SANTA MARIA\n\nof Los Angeles, 143 Cal. App. 3d 298, 316–17 (Ct. App.\n1983); Nelson v. State, 139 Cal. App. 3d 72, 80–81 (Ct. App.\n1982). The complaint alleges that the defendants subjected\nHorton to “a delay in and/or denial of medical or mental\nhealth care,” not (or at least, not only) that they failed to\ndiagnose or treat his mental illness — a responsibility\ntypically entrusted to a medical professional. See Johnson,\n143 Cal. App. 3d at 316 (“We hold that as a matter of law a\nsheriff does not have the authority to make the final\ndetermination of diagnosing that a person is, or is not,\nafflicted with mental illness . . . . [S]uch determinations are\nproperly made by physicians and other persons trained in the\nhealing arts.”).\n\n Relatedly, the defendants argue that the exception to\n§ 845.6’s broad immunity rule concerns the failure to\n\n\n resulting from diagnosing or failing to diagnose that a\n person is afflicted with mental illness or addiction or\n from failing to prescribe for mental illness or addiction.\n\n (b) A public employee acting within the scope of his\n employment is not liable for administering with due\n care the treatment prescribed for mental illness or\n addiction.\n\n (c) Nothing in this section exonerates a public\n employee who has undertaken to prescribe for mental\n illness or addiction from liability for injury proximately\n caused by his negligence or by his wrongful act in so\n prescribing.\n\n (d) Nothing in this section exonerates a public\n employee from liability for injury proximately caused\n by his negligent or wrongful act or omission in\n administering any treatment prescribed for mental\n illness or addiction.\n\n HORTON V. CITY OF SANTA MARIA 27\n\nsummon medical care, and Horton’s complaint centers on\nOfficer Brice’s own failure to return immediately to Horton’s\ncell, rather than a failure to summon third-party medical care\nupon finding Horton. But Horton’s complaint is not so\nlimited: It specifically alleges that defendants had reason to\nknow that “Horton was in need of immediate medical care”\nand “failed to take reasonable action to summon such medical\ncare.” Officer Schneider’s statement that they should\n“[p]robably do a psych,” indicates the kind of care that\nOfficer Brice could have been expected to summon once he\ngot off the phone with Yvonne.13 Had Officer Brice\nrequested a prompt psychiatric evaluation or otherwise\nsummoned psychiatric care, Horton could have been found\nsooner and the period of anoxia he suffered shortened. We\ncannot say, as a matter of law, that Officer Brice’s omissions\ndid not proximately cause injury to Horton. See Zeilman,\n168 Cal. App. 3d at 1187.\n\n Finally, defendants maintain that Officer Brice did not\nknow or have reason to know that Horton required immediate\nmedical care. As to this proposition, two California Court of\nAppeal cases addressing § 845.6 claims premised on suicidal\nideation are instructive. In Lucas v. City of Long Beach,\n60 Cal. App. 3d 341 (Ct. App. 1976), the decedent hung\nhimself in his cell after being arrested on charges of being\ndrunk and disorderly. Id. at 344–45. Reversing a jury verdict\nin favor of the plaintiff, the Court of Appeal emphasized that\n\n\n 13\n There is little doubt that ordering a psychiatric evaluation could\nconstitute “summoning medical care” under the California courts’ broad\nview of “medical care.” See Zeilman v. County of Kern, 168 Cal. App. 3d\n1174, 1187 (Ct. App. 1985) (indicating that having medical personnel\nassist a pretrial detainee on crutches or providing a wheelchair would\nconstitute “summoning medical aid”).\n\n28 HORTON V. CITY OF SANTA MARIA\n\nthere was “not a scintilla of evidence in the record indicating\nthat [the decedent’s] conduct was any different than one\nmight expect of a person intoxicated on either drugs or\nalcohol.” Id. at 350.\n\n By contrast, in Johnson v. County of Los Angeles, the\ndecedent had informed sheriffs “that he was attempting to\ncommit suicide and that ‘people’ were trying to torture and\nkill him,” and the decedent’s wife had indicated that the\n“Decedent was a paranoid schizophrenic, had been repeatedly\nhospitalized, . . . required immediate medication . . . to\ncorrect a chemical imbalance,” and “had suicidal tendencies.”\n143 Cal. App. 3d at 304. The Court of Appeal reversed the\ndismissal of the complaint alleging that the sheriffs breached\ntheir statutory duty to summon medical care, and held that the\nsheriffs’ “actual or constructive knowledge of Decedent’s\nneed for immediate care” and “reasonable action to summon\n. . . such care” were “questions of fact to be determined at\ntrial.” Id. at 317.\n\n This case falls between Lucas and Johnson as to the need\nfor mental health care. Officer Brice, unlike the sheriffs in\nJohnson, was not specifically told by either Horton or his\nmother that Horton “required immediate medication” or was\npresently “attempting to commit suicide.” But there was\nconsiderably more than “a scintilla of evidence” that Horton\nrequired immediate medical attention: Officer Brice knew\nfrom his conversation with Horton’s girlfriend that Horton\nhad chased his girlfriend with a knife, stabbed a friend in the\nleg and sympathized with the suspects in mass homicides,\nand, on the facts most favorable to Horton, had been told that\nHorton was suicidal, had put cigarettes out on his face, had\nrecently been hospitalized after threatening to kill himself,\nand would benefit from “access to mental health.” Moreover,\n\n HORTON V. CITY OF SANTA MARIA 29\n\n“[i]t is significant that in . . . Lucas . . . the court’s rejection\nof claims pursuant to section 845.6 was based in large part\nupon failure of proof at trial.” Zeilman, 168 Cal. App. 3d at\n1186. A “trier of fact” should be permitted to determine\nwhether the information Officer Brice had “should have given\nrise to knowledge of [the] need for immediate medical care.”\nId. at 1186–87.\n\n As to immediacy, the defendants argue that Officer Brice\ncould not reasonably be expected to have known the urgency\nof the situation. “Liability under section 845.6 is limited to\nserious and obvious medical conditions requiring immediate\ncare.” Watson v. State, 21 Cal. App. 4th 836, 841 (Ct. App.\n1993); see id. at 843. But that immediacy standard is, under\nthe applicable case law, relaxed.14 In Jett v. Penner, we held\nthat the need for “immediate medical care” under § 845.6\narises when a prisoner is instructed that he must see a doctor\n“this week” to have a fractured thumb set and placed in a\ncast. 439 F.3d at 1099. Jett thus makes clear that\n“immediate” does not signify urgent; rather, the obligation to\nsummon immediate medical care requires that the public\nemployee act in a “timely” manner, so as to prevent further\ninjury. Id. at 1093.\n\n In sum, on the facts construed in the light most favorable\nto Horton, a reasonable jury could conclude that Officer Brice\nhad “reason to know” Horton had a “serious” medical\ncondition and required “immediate medical care” as that term\n\n\n 14\n Castro v. County of Los Angeles involved the risk of serious harm\nassociated with placing a combative inmate in the same cell as another\ndetainee. 833 F.3d at 1064. Castro did not address the question of how\n“immediate” the risk of serious harm — or specifically of suicide — must\nbe to sustain a deliberate indifference claim under that objective standard.\n\n30 HORTON V. CITY OF SANTA MARIA\n\nis interpreted under California law, and that he failed timely\nto summon such care. The partial dissent disagrees with us\nthat the evidence revealed Horton’s risk of suicide was\nimmediate enough to require prompt medical attention.\nPartial Dissent 42–44. But this disagreement is precisely the\ntype of question that should be left to a jury and not decided\non summary judgement. “[Q]uestions about jail personnel’s\nactual or constructive knowledge of a prisoner’s need for\nimmediate medical care as well as the reasonableness of\nactions taken to meet this need are factual questions . . .”\nZeilman, 168 Cal. App. 3d at 1184. In reviewing the denial of\nsummary judgment, “[t]his court does not weigh the evidence\nor determine the truth of the matter, but only determines\nwhether there is a genuine issue for trial.” Balint v. Carson\nCity, 180 F.3d 1047, 1054 (9th Cir. 1999); see also Zeilman,\n168 Cal. App. 3d at 1187 (“[D]ifficulty in proof does not\nequate to resolution as a matter of law.”). Whether Officer\nBrice had reason to know that Horton faced a need for\nimmediate mental health care and failed to summon it is a\n“question[] of fact to be determined at trial” on which “we\nneed not . . . speculate.” Johnson, 143 Cal. App. 3d at 316.\nHaving so determined, we affirm the district court’s denial of\nsummary judgment in favor of Officer Brice and the\nmunicipal defendants on the § 845.6 claim.\n\n Conclusion\n\n We conclude that Officer Brice is entitled to qualified\nimmunity as a matter of law and so reverse the district court’s\ndenial of summary judgment in favor of Officer Brice on the\n§ 1983 claim. We next hold that we lack jurisdiction to\nreview the district court’s denial of summary judgment in\nfavor of the municipal defendants on the § 1983 claim. In\ndoing so, we caution that, “it is not enough for a § 1983\n\n HORTON V. CITY OF SANTA MARIA 31\n\nplaintiff merely to identify conduct properly attributable to\nthe municipality. The plaintiff must also demonstrate that,\nthrough its deliberate conduct, the municipality was the\n‘moving force’ behind the injury alleged.” Brown, 520 U.S.\nat 404. In holding that municipal defendants may be liable in\na § 1983 action even absent a finding of liability on the part\nof any individual officer — and that we therefore lack\njurisdiction to review the district court’s denial of summary\njudgment in favor of the municipal defendants on Horton’s\n§ 1983 claims — we express no views on whether the\nmunicipal defendants here may properly be held liable.\nInstead, we remand to permit the district court to consider the\nremaining claims in light of this court’s recent guidance in\nCastro and Gordon.\n\n Finally, we affirm the district court’s denial of summary\njudgment on the state law claim.\n\n REVERSED in part, AFFIRMED in part, and\nREMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363971/", "author_raw": "BERZON, Circuit Judge:"}, {"author": "BYBEE, Circuit Judge, dissenting", "type": "dissent", "text": "BYBEE, Circuit Judge, dissenting in part:\n\n This is a tragic case. Officer Brice’s phone call with\nHorton’s mother likely left him with the impression that\nHorton was a troubled young man experiencing a difficult\nperiod in his life. The call could not have resulted in Officer\nBrice preventing the suicide attempt, as it is undisputed that\nHorton had already hanged himself and stopped moving by\nthe time the call ended. Maj. Op. 9 n.5. But had Officer\nBrice checked on Horton immediately afterwards, his brain\ndamage could have been mitigated.\n\n32 HORTON V. CITY OF SANTA MARIA\n\n None of this means, however, that Officer Brice can be\nheld liable under the Fourteenth Amendment or California\nlaw. I join the majority opinion in concluding that Officer\nBrice is entitled to qualified immunity for Horton’s\ndeliberate-indifference claim under 42 U.S.C. § 1983.1 See\nMaj. Op. § II.A. The evidence fails to establish that “a\nreasonable officer would . . . have known that failing to attend\nto Horton immediately would be unlawful.” See id. at 15.\nThe same reasoning dictates that we hold that Officer Brice\nis entitled to state-law immunity under California\nGovernment Code § 845.6. I would therefore also reverse the\ndistrict court as to this claim, and I respectfully dissent only\nfrom this portion of the opinion. See Maj. Op. § II.C.\n\n A deliberate-indifference claim under § 1983 is not\nidentical to a claim brought under § 845.6. The California\nstatute is unusual, as it “confers a broad general immunity”\non public entities and their employees, Watson v. State,\n26 Cal. Rptr. 2d 262, 265 (Cal. Ct. App. 1993), yet\nsimultaneously imposes an affirmative duty on them that can\ngive rise to liability under narrow circumstances, Johnson v.\nCounty of Los Angeles, 191 Cal. Rptr. 704, 717 (Cal. Ct. App.\n1983); Nelson v. State, 188 Cal. Rptr. 479, 483 (Cal. Ct. App.\n1982). Specifically, the statute’s first clause confers\nimmunity from suit “for injury proximately caused by the\nfailure of the employee to furnish or obtain medical care for\na prisoner in his custody . . . .” Cal. Gov’t Code § 845.6\n(emphasis added); see also Castaneda v. Dep’t of Corr. &\nRehab., 151 Cal. Rptr. 3d 648, 663 (Cal. Ct. App. 2013). The\nsecond clause is the exception to this rule, exposing a public\n\n\n 1\n I also join the opinion’s subsequent section concluding that we lack\njurisdiction to review the denial of summary judgment as to Horton’s\nMonell claim. See Maj. Op. § II.B.\n\n HORTON V. CITY OF SANTA MARIA 33\n\nemployee to suit only when he “knows or has reason to know\nthat the prisoner is in need of immediate medical care and he\nfails to take reasonable action to summon such medical care.”\nCal. Gov’t Code § 845.6 (emphasis added). “Thus, section\n845.6 creates out of the general immunity a limited cause of\naction against a public entity for its employees’ failure to\nsummon immediate medical care only. The statute does not\ncreate liability of the public entity for malpractice in\nfurnishing or obtaining that medical care.” Castaneda,\n151 Cal. Rptr. 3d at 663 (first emphasis added) (citations\nomitted).\n\n To state a claim under § 845.6, a plaintiff must satisfy\nthree elements. See id. First, he must establish that whatever\naction he contends that the defendant should have taken—the\nstatute is after all explicitly premised only on a failure to\nact—constitutes summoning medical care. See Cal. Gov’t\nCode § 845.6. Next, there is the knowledge component: the\nplaintiff must prove that the defendant knew or should have\nknown that the plaintiff was in need of this medical care and\nthat the need was immediate. Id. Finally, the plaintiff must\nestablish that the defendant failed to act reasonably to meet\nthe medical need. Id.\n\n Horton cannot satisfy either of the first two elements. He\nhas thus failed, as a matter of law, to establish that Officer\nBrice may be subjected to suit under state law. I address each\nelement in turn.\n\n I\n\n Section 845.6 creates liability only for the failure to\nsummon medical care rather than for all omissions by a\npublic employee that cause injury to a person in his custody.\n\n34 HORTON V. CITY OF SANTA MARIA\n\nConsider, for instance, a Sheriff’s deputy who is tasked with\nassembling a new bunk bed in a cell at a county jail and does\nso negligently by failing to read the instructions and not using\nall provided parts. If the bed later collapses and consequently\nbreaks its occupant’s leg, § 845.6 would not expose the\ndeputy to liability for that injury. The deputy might be liable\nunder some other law, but not for violating § 845.6.\nConversely, if a different deputy on duty witnessed the\naccident and took no action despite the prisoner’s complaints\nof pain to his leg, this second deputy would likely be liable;\nhe would not be immune from suit for any additional injury\ncaused by the delay in summoning medical care to treat the\nleg. See, e.g., Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir.\n2006).\n\n A claim premised on suicidal ideation creates a\nparticularly difficult question as to what types of omissions\nwould constitute a failure to summon medical care. Even if\nan officer had knowledge that there was an imminent risk that\nthe prisoner would make an attempt on his own life, it would\nbe difficult to say that a failure to remove that prisoner’s\nbedsheets and shoelaces would fall within this statute’s ambit\nbecause it is not natural to describe the removal of such items\nas summoning medical care. The failure to remove them\nmight violate some other provision of California law, but the\nomission is not an obvious violation of § 845.6.\n\n Here, our analysis is complicated by the fact that Horton’s\ncomplaint consists of a single conclusory allegation regarding\nwhat omissions purportedly violated § 845.6: “Defendants\n. . . knew, or had reason to know, that Shane Horton was in\nneed of immediate medical care, supervision and\nsafeguarding and that he was suicidal and at risk of injuring\nhimself, but failed to take reasonable action to summon such\n\n HORTON V. CITY OF SANTA MARIA 35\n\nmedical care . . . .” Horton adds little clarity on appeal,\nmerely highlighting the fact that he was “already slumped on\nthe floor motionless when Officer Brice finished” the call as\nevidence that he “was in immediate need of medical\nattention.” But the fact that Horton needed to be resuscitated\nonce he had already hanged himself says nothing about what\nactions Officer Brice should have taken before he returned to\nHorton’s cell and discovered the suicide attempt.2 In other\nwords, Horton’s argument is circular; he implies that, because\nhe was in need of medical care once he had hanged himself,\nany omission by Officer Brice constituted a failure to\nsummon medical care.\n\n Ultimately, it is evident that Horton’s state-law claim, like\nhis § 1983 claim, is premised on his contention that “the\ninformation communicated by . . . Horton’s mother should\nhave prompted [Officer Brice] to check on Horton promptly\nand discover the need for immediate medical care.” As\naddressed below, I do not believe Horton has provided any\nevidence that Officer Brice knew or should have known that\nHorton was in immediate danger of harming himself. But\neven assuming that this knowledge component is satisfied,\nthe majority opinion does not address how Officer Brice’s\nfailure to check on Horton immediately after the phone call\nconstitutes a failure to summon medical care. The majority\nhas not explained why this statute even applies in this case.3\n\n 2\n Horton has never alleged—nor does the record show—that Officer\nBrice delayed in summoning emergency care after he discovered that\nHorton had hanged himself. Rather, Officer Brice personally administered\nCPR until paramedics arrived.\n 3\n Section 845.6 grants immunity to an officer who fails to “furnish or\nobtain medical care” but limits an officer’s liability to a failure “to\nsummon such medical care” when the officer has actual or constructive\n\n36 HORTON V. CITY OF SANTA MARIA\n\n The California Court of Appeal emphasized this precise\ndeficiency in Lucas v. City of Long Beach, where the\ndecedent hanged himself in his cell after being arrested on a\ncharge of being drunk and disorderly:\n\n Plaintiff, [the decedent’s mother] . . . , offered\n no evidence as to what kind of medical care\n she claims should have been provided and\n more importantly she offered no evidence as\n to how such medical care could have\n prevented the death. [The decedent] was not\n in fact in need of immediate medical care and\n clearly lack of medical care did not “cause”\n the death.\n\n True the continuous presence in the cell of a\n doctor, a nurse, or, for that matter, a\n policeman probably would have prevented the\n suicide. The jury apparently reasoned along\n these lines. Government Code section 845.6,\n\n\nknowledge of its immediate need. Cal. Gov’t Code § 845.6 (emphasis\nadded). Therefore, this statute does not create an affirmative duty for an\nofficer to personally furnish medical care. Castaneda, 151 Cal. Rptr. 3d\nat 666 (“Were we to conclude the duty under section 845.6 includes\nfurnishing, monitoring, followup, or subsequent care for the same\ncondition, . . . we would be expanding the liability of the public entity\nbeyond that contemplated by the Legislature.”). Accordingly, if an inmate\naccidently severs his hand in the prison’s machine shop, a supervising\nguard will undoubtedly be liable under § 845.6 for not radioing in for\nimmediate medical aid. The guard would, however, be immune from suit\nif the inmate alleged only that the guard should have personally\nadministered a makeshift tourniquet. This distinction demonstrates why\nCalifornia courts have concluded that the statute “is very narrowly\nwritten,” id. at 663, and further highlights that Horton’s claim is not\npremised on a failure to summon care.\n\n HORTON V. CITY OF SANTA MARIA 37\n\n however, in affixing liability for failure to\n summon “immediate medical care” for a\n person in need thereof envisions liability for\n injury resulting from the failure to treat the\n physical condition requiring treatment and not\n for some other incidental injury that might\n have been prevented by the mere presence of\n medical personnel. The jury’s findings that it\n was negligence not to provide medical\n treatment and that that failure was the “cause”\n of death are not supported by any evidence to\n be found in the record.\n\n131 Cal. Rptr. 470, 475 (Cal. Ct. App. 1976) (emphasis\nadded). Lucas thus demonstrates that, as discussed above, not\nall forms of omission give rise to liability under § 845.6.\nAlthough Officer Brice’s presence in Horton’s cell\nimmediately after the call may have prevented Horton from\nsuffering the degree of brain damage that he did, any failure\nto check on Horton sooner falls outside the statute’s narrow\nexception to immunity.\n\n Rather than confronting this dispositive flaw in Horton’s\nstate-law claim,4 the majority summarily asserts that the\nclaim is “not . . . limited” to “Officer Brice’s own failure to\nreturn immediately to Horton’s cell . . . .” Maj. Op. 27.\nTellingly, the majority supports this conclusion by citing only\nto Horton’s complaint, which, as seen above, does not allege\n\n\n 4\n The majority fails to address the above-quoted reasoning in Lucas\nregarding the medical-care element under § 845.6. Instead, the majority\naddresses Lucas only in the context of the statute’s knowledge\nelement—i.e., whether Officer Brice should have known that Horton\nposed an immediate suicide risk. Maj. Op. 27–29.\n\n38 HORTON V. CITY OF SANTA MARIA\n\na single specific action that Officer Brice failed to take. See\nid. This is unsurprising. Nothing in Horton’s briefing or the\nrecord indicates that his claim, as to Officer Brice, is\npremised on anything other than the officer not immediately\nchecking on him.\n\n Undeterred, the majority supplements Horton’s claim for\nhim, concluding that Officer Brice could have ordered a\npsychiatric evaluation for Horton—as Officer Schneider\nsuggested earlier that day.5 Id. I have two objections. First,\nHorton has never contended that such an evaluation is the\ntype of medical care that Officer Brice should have\nsummoned after the call with his mother. It is improper for\nthe majority to deny Officer Brice state-law immunity based\non an argument that it manufactured. See Greenwood v. FAA,\n28 F.3d 971, 977 (9th Cir. 1994).\n\n But second, even if properly before us, this new argument\ndoes not cure this claim. The majority’s assertion that Officer\nBrice should have ordered a psychiatric evaluation is a\ncircuitous attempt to argue that the officer or third-party\nmedical personnel failed to furnish medical care and, in the\nprocess, could have more quickly discovered the suicide\nattempt. California cases have repeatedly rejected such\nclaims. See, e.g., Lucas, 131 Cal. Rptr. at 475 (“[S]ection\n845.6 . . . , in affixing liability for failure to summon\n‘immediate medical care’ for a person in need thereof\nenvisions liability for injury resulting from the failure to treat\n\n\n 5\n Officer Schneider referenced “[p]robably do[ing] a psych or\nsomething” to Horton after the two had a half-an-hour conversation.\nOfficer Brice was not at the police station at the time, and the record does\nnot show that Schneider later conveyed this suggestion or the\nconversation’s content to Brice.\n\n HORTON V. CITY OF SANTA MARIA 39\n\nthe physical condition requiring treatment and not for some\nother incidental injury that might have been prevented by the\nmere presence of medical personnel.”); see also Castaneda,\n151 Cal. Rptr. 3d at 663–64 (discussing “[t]he distinction\nbetween failure to summon medical care—for which the State\ncan be held liable under section 845.6—on the one hand, and\nnegligence in providing care—for which the State is\nimmune—on the other hand”); id. at 664 n.10, 666 (repeating\nthe point); Nelson, 188 Cal. Rptr. at 485 (“Failure of a\npractitioner to prescribe or provide necessary medication or\ntreatment . . . is . . . medical malpractice . . . [but] cannot be\ncharacterized as a failure to summon medical care.”).\n\n Moreover, the medical care that the majority insists upon\nwould not have addressed Horton’s medical needs—he had\nalready hanged himself by the time that the call ended. There\nis also no evidence that ordering a psychiatric evaluation\nwould have resulted in Officer Brice more quickly checking\non Horton. Officer Brice could have ordered an\nevaluation—a paperwork or telephone request—without\nchecking on Horton. It is likely that doing so would have\nrequired the officer to spend additional time on administrative\ntasks outside of Horton’s presence, only further delaying his\nreturn to the cell. Accordingly, Horton has failed to show\nthat any purported omission by Officer Brice falls within the\nscope of § 845.6 liability.\n\n By disregarding the statute’s medical-care element, the\nmajority opinion undermines California’s intent to immunize\nits employees and to allow suit only when an employee has\nactual or constructive knowledge of an immediate medical\nneed. The opinion has converted § 845.6 into a general\nnegligence provision, ignoring “[t]he limited nature of the\n\n40 HORTON V. CITY OF SANTA MARIA\n\nduty to summon under section 845.6.” Castaneda, 151 Cal.\nRptr. 3d at 666.\n\n II\n\n Even if Horton could establish that any omission\nconstituted a failure to summon medical care, he has\nseparately failed to provide evidence that Officer Brice knew\nor should have known that there was an immediate danger\nthat he would harm himself. In concluding that Horton has\nraised a triable issue, the opinion cites to Zeilman v. County\nof Kern for the proposition that “jail personnel’s actual or\nconstructive knowledge of a prisoner’s need for immediate\nmedical care as well as the reasonableness of actions taken to\nmeet this need are factual questions . . . .” 214 Cal. Rptr. 746,\n753 (Cal. Ct. App. 1985); Maj. Op. 30. But even Zeilman\nrecognized that summary judgment on § 845.6 claims can be\nappropriate in some circumstances, 214 Cal. Rptr. at 754, and\nits facts are distinguishable from this case.\n\n In Zeilman, the plaintiff was being booked at the county\njail following her arrest and was relying on crutches due to a\nski accident. Id. at 747–48. After the booking process was\ncomplete, a deputy directed the plaintiff to sit down at a\nnearby chair, but she fell when her crutches slipped out from\nunder her. Id. at 748–49, 754. In opposing summary\njudgment on her § 845.6 claim, she presented a declaration\nfrom her attorney “stating that he arrived at the jail during the\nbooking procedure and could observe his client being booked,\nin an ‘aggitated [sic], emotional and weakened condition\nwhich was easily apparent to him and any other person in his\nvicinity.’” Id. at 748 (emphasis added). The Court of Appeal\nreversed the trial court’s grant of summary judgment,\nreasoning that a jury had to determine whether this evidence\n\n HORTON V. CITY OF SANTA MARIA 41\n\nand the plaintiff’s use of crutches “should have given rise to\nknowledge of her need for immediate medical care.” Id. at\n754.\n\n In reaching this conclusion, Zeilman distinguished these\nfacts from Lucas, the detainee-suicide case discussed above.\nId. at 753–55. In Lucas, the plaintiff not only failed to\nestablish that the officer’s purported omission constituted\nmedical care, but she also failed to provide evidence that the\nofficer should have known that there was an immediate\nsuicide risk. Lucas, 131 Cal. Rptr. at 475. Indeed the\ndecedent was merely drunk and visibly upset about “the\neffect that his arrest would have on his mother . . . .” Id.\n(“[T]here is not a scintilla of evidence in the record indicating\nthat his conduct was any different than one might expect of\na person intoxicated on either drugs or alcohol.”).\n\n The Zeilman court also addressed Kinney v. County of\nContra Costa, where the detainee merely asked the officer if\nshe could be given something for “a very bad headache” and\nwas denied. 87 Cal. Rptr. 638, 644 (Cal. Ct. App. 1970).\nAlthough the plaintiff claimed she was “ready to collapse” by\nthe time she was released from the police station, the Court of\nAppeal held that a request for aspirin “cannot reasonably be\ndeemed notice ‘that the prisoner is in need of immediate\nmedical care.’” Id.\n\n In distinguishing Lucas and Kinney, Zeilman emphasized\nthat both earlier cases had proceeded to a jury but that the\nplaintiffs had failed to produce sufficient evidence at trial.6\n\n\n 6\n In Lucas, a jury rendered a verdict in the plaintiff’s favor, but the\nCourt of Appeal reversed on a sufficiency-of-the-evidence claim. 131 Cal.\nRptr. at 474. The trial court in Kinney issued a judgment of nonsuit at the\n\n42 HORTON V. CITY OF SANTA MARIA\n\n214 Cal. Rptr. at 754. The majority in our case highlights this\npoint without acknowledging that the Zeilman court\nnonetheless concluded that summary judgment might have\nbeen proper in both Lucas and Kinney. Id. Accordingly,\nZeilman does not stand for the proposition that a § 845.6\nclaim per se precludes summary judgment. Such relief would\nhave certainly been warranted in Lucas, where the plaintiff\nfailed to provide evidence supporting the medical-care and\nknowledge elements. In contrast, the plaintiff in Zeilman\ncame forward with at least some evidence that the deputy\nshould have known she was in need of immediate assistance7\nin the form of her lawyer’s attestation that her weakened\ncondition was visibly and readily apparent.\n\n This brings me to the evidence in this case. Horton’s\nmother testified during her deposition that she told Officer\nBrice “‘everything’ about the December 13, 2012\nincident—Horton’s use of drugs, the cigarette marks on his\nface and hands, the knife he held to his throat, his\nhospitalization with an initial ‘5150’ hold for risk of suicide,\nthe CARES official’s conclusion that he could be discharged\nbecause his conduct was due to drugs not suicidal ideation,\nand [Mrs. Horton’s] disagreement with that conclusion.”\nMaj. Op. 8. She “testified that she also told Officer Brice that\nher son was depressed and suicidal, that she was really\n\n\n\nclose of the plaintiff’s case in chief, which the Court of Appeal affirmed.\n87 Cal. Rptr. at 644.\n 7\n I question whether failing to help the plaintiff in Zeilman to her chair\nconstitutes a failure to summon medical care. Although the Zeilman court\nquoted the relevant medical-care language from Lucas, it did not address\nthat element in distinguishing the two cases, which appears not to have\nbeen in dispute.\n\n HORTON V. CITY OF SANTA MARIA 43\n\nworried about him, and that she believed he could be helped\nin the judicial system.” Id.\n\n This testimony admittedly distinguishes our case from\nLucas, where there was no evidence whatsoever that the\ndetainee suffered from suicidal ideation. But even when the\nevidence here is taken in the light most favorable to Horton,\nI would hold that no reasonable jury could find that Officer\nBrice should have known that there was an immediate risk\nthat Horton would harm himself and that the officer therefore\nneeded to take immediate action. A person can suffer from\ndepression and suicidal thoughts for years without ever\nharming himself. Indeed, the incident that Horton’s mother\ndescribed to Officer Brice occurred two weeks prior to the\narrest, and she provided no evidence that Horton had made\nany attempts or threats on his life in the intervening period.\nSeeking “help[] in the judicial system” is not close to a call\nfor immediate assistance for someone who recently exhibited\nsuicidal ideation.\n\n This is not a case where Horton’s parents had imposed an\ninformal 24/7 suicide watch on him. His father had kicked\nhim out of the house after the glass-breaking incident, so it\nappears Horton was living independently, without supervision\nfor the two weeks preceding his arrest. Moreover, his mother\ndid not rush down to the police station once she heard that her\nson had been arrested; rather, she had just told Horton that\nshe would not bail him out. Horton’s mother was certainly\nconcerned about his well-being, but she never claims to have\nexpressed to Officer Brice that Horton would likely make an\nattempt on his life if the officer did not take immediate action\nto ensure Horton was unable to do so—e.g., by removing his\nbelt, moving him to a secured, padded cell, and monitoring\nhim constantly. It would certainly have been prudent of\n\n44 HORTON V. CITY OF SANTA MARIA\n\nOfficer Brice to pass along the information Horton’s mother\nclaims to have given him to the officials at the county jail\nonce Horton was transferred, but that falls far short of failing\nto recognize Horton’s immediate need for medical care.\n\n Moreover, Horton’s mother testified that she spoke to\nOfficer Brice for ten to fifteen minutes—a substantial amount\nof time. Had she thought her son was in immediate danger of\nharming himself, she would have told Officer Brice to drop\nthe phone and rush to Horton’s cell. Indeed, if anything, the\nofficer’s patient call with Horton’s mother would have\nreinforced that Horton needed a psychiatric\nevaluation—which was likely obtainable at the county jail\nrather than at the police station where Horton was being\ntemporarily held.\n\n The majority does not address this absence of evidence.\nNor does it attempt to reconcile its conclusion that Officer\nBrice, for the purpose of the state-law claim, should have\nknown that Horton posed an immediate suicide risk with our\nholding regarding his § 1983 claim: “Based on these facts,\n. . . a reasonable officer would not have known that failing to\nattend to Horton immediately would be unlawful.” Maj. Op.\n15.\n\n The majority instead summarily cites Jett for the\nproposition that the “immediacy standard” under § 845.6 is\nmore “relaxed” than under § 1983 deliberate-indifference\nclaims.8 Maj. Op. 29. But this conclusion misconstrues Jett.\n\n\n\n 8\n Horton does not cite Jett. Nor does he contend that a claim\npremised on suicidal ideation entails a lesser showing of immediacy of\nharm under § 845.6 than under the deliberate-indifference standard.\n\n HORTON V. CITY OF SANTA MARIA 45\n\nThere, the emergency-room doctor instructed the prisoner-\nplaintiff to follow-up with an orthopedic doctor “early this\nweek” after he fractured his thumb. Jett, 439 F.3d at 1094.\nThe plaintiff saw a prison doctor three days later, but his hand\nwas too swollen to be placed in a permanent cast. Id.\nDespite reports of pain and numerous requests to visit an\northopedist, it took an additional two months for the plaintiff\nto be seen even by another prison doctor. Id. After four\nadditional months, the plaintiff finally visited an orthopedic\nspecialist, “who determined [the plaintiff] should be referred\nto a hand specialist because the fracture had healed\nimproperly.” Id. at 1095. The evidence demonstrated that\nthe delay in seeing an orthopedist prevented the fracture from\ncorrectly aligning. Id. at 1098.\n\n We reversed the district court’s grant of summary\njudgment on the plaintiff’s deliberate-indifference claims,\nconcluding that there was evidence that several prison\nofficials knew of but ignored the plaintiff’s need to set his\nfracture. Id. In regard to his § 845.6 claim, we held that there\nwas “a triable issue of fact . . . as to whether [the plaintiff]\nreceived immediate medical care for his diagnosed fractured\nthumb because the fracture was not set and placed in a cast.”\nId. at 1099. We reasoned that “the need for ‘immediate\nmedical care’ can arise more than once in relation to an\nongoing serious medical condition” and that this need “arose\nas soon as [the plaintiff’s] swelling subsided and his fracture\ncould be reduced and a cast applied.” Id. (emphasis added).\n\n Accordingly, Jett provides no insight into how immediate\na medical need must be under § 845.6. The plaintiff’s\n\n\nAgain, it is improper for the majority to raise arguments that Horton has\nfailed to advance.\n\n46 HORTON V. CITY OF SANTA MARIA\n\nmedical condition was ongoing and his need for care\nresurfaced as soon as his reduced swelling made the original\nprescribed treatment possible.9 Thus, the key point in Jett\nregarding both § 845.6 and deliberate indifference is that\nthere was evidence that prison officials had actual knowledge\nthat the plaintiff had a time-sensitive medical need and took\nno action for many months. The case does not support the\nmajority’s conclusion.\n\n In my view, Horton’s claim fails because he has not\nprovided evidence that Officer Brice should have known that\nHorton posed such a degree of suicide risk that the officer\nshould have immediately rushed to his cell instead of\nspending twelve to seventeen minutes arranging to transfer\nHorton and another detainee to county jail.\n\n III\n\n I sympathize deeply with Horton and his mother, but there\nis no basis under California law for subjecting Officer Brice\n\n\n 9\n The California Court of Appeal has criticized our conclusion in Jett,\nreasoning that the duty to summon medical care does not extend to\nensuring that proper follow-up treatment—i.e., setting the fracture—is\neventually provided. Castaneda, 151 Cal. Rptr. 3d at 666 (“[T]he Ninth\nCircuit’s application of section 845.6 ignores California authority\ninterpreting that statute. California courts hold the failure to prescribe\nnecessary medication or, once summoned to provide treatment, to ensure\nproper diagnosis, or to monitor the progress of an inmate that the public\nemployee has been summoned to assist, are issues relating to the manner\nin which medical care is provided, and do not subject the State to liability\nunder section 845.6 for failure to summon.”). The majority opinion\ncreates additional tension between Jett and Castaneda because Jett is\ninapposite and should not have been cited. See Scalia v. County of Kern,\n308 F. Supp. 3d 1064, 1087 (E.D. Cal. 2018) (declining to follow Jett’s\ninterpretation of § 845.6 in light of Castenada).\n\n HORTON V. CITY OF SANTA MARIA 47\n\nto suit. Considered in the light most favorable to Horton, the\nevents earlier that day and the phone call with his mother did\nnot imbue Officer Brice with the actual or constructive\nknowledge that Horton would attempt suicide at any moment.\nAnd although it may have been prudent for Officer Brice to\nimmediately check on Horton, his decision not to do so is not\na failure to summon medical care. For these two independent\nreasons, I would reverse the district court’s denial of\nsummary judgment to Officer Brice on Horton’s § 845.6\nclaim.\n\n I respectfully dissent as to this claim.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363971/", "author_raw": "BYBEE, Circuit Judge, dissenting"}]}	MARSHA S BERZON	JAY S BYBEE	SHARON L GLEASON	1	{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586718/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,586,719		Richard Hurles v. Charles Ryan	2019-02-01	16-99007	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Chief Judge, and Richard A. Paez and N. Randy Smith, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nRICHARD DEAN HURLES, No. 16-99007\n Petitioner-Appellant,\n D.C. No.\n v. 2:00-cv-00118-DLR\n\nCHARLES L. RYAN, Warden;\nGEORGE HERMAN, Warden, OPINION\nArizona State Prison - Eyman\nComplex,\n Respondents-Appellees.\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Douglas L. Rayes, District Judge, Presiding\n\n Argued and Submitted December 10, 2018\n San Francisco, California\n\n Filed February 1, 2019\n\nBefore: Sidney R. Thomas, Chief Judge, and Richard A.\n Paez and N. Randy Smith, Circuit Judges.\n\n Per Curiam Opinion\n\f2 HURLES V. RYAN\n\n SUMMARY\n\n\n Habeas Corpus\n\n The panel affirmed the district court’s judgment, on\nremand for an evidentiary hearing, dismissing a habeas\ncorpus petition.\n\n The panel could not say that the district court committed\nclear error in its determinations, after conducting an\nevidentiary hearing on remand, that there was no actual\njudicial bias.\n\n The panel held that the petitioner’s claim of ineffective\nassistance of appellate counsel is not viable in light of Davila\nv. Davis, 137 S. Ct. 2058 (2017), which held that the holding\nin Martinez v. Ryan, 566 U.S. 1 (2012) – that a successful\nclaim of post-conviction ineffective assistance of counsel\ncan excuse a procedurally defaulted claim of ineffective\nassistance of trial counsel – does not extend to procedurally\ndefaulted claims of ineffective assistance of appellate\ncounsel. The panel wrote that because Davila is clearly\nirreconcilable with this court’s prior precedent, Nguyen v.\nCurry, 736 F.3d 1287 (9th Cir. 2013), Nguyen does not\ncontrol the panel’s decision, and a prior panel’s pre-Davila\ndecision applying Nguyen to this case does not bind this\npanel.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f HURLES V. RYAN 3\n\n COUNSEL\n\nEmily Katherine Skinner (argued) and Natman Schaye,\nAssociate Counsel, Arizona Capital Representation Project,\nTucson, Arizona; Denise Young, Tucson, Arizona; for\nPetitioner-Appellant.\n\nJulie Ann Done (argued), Assistant Attorney General, Capital\nLitigation Section; Lacey Stover Gard, Chief Counsel; Mark\nBrnovich, Attorney General; Office of the Attorney General,\nPhoenix, Arizona; for Respondents-Appellees.\n\n\n OPINION\n\nPER CURIAM:\n\n This appeal returns to us after a prior panel remanded the\ncase to the district court for an evidentiary hearing. Hurles v.\nRyan, 752 F.3d 768 (9th Cir. 2014). After considering the\nrecord, briefs, and arguments, we affirm. The factual record\nin the case was thoroughly discussed in our prior opinion, so\nwe need not recount it here.\n\n Because Hurles filed his federal habeas petition in 2000,\nthe Anti-Terrorism and Effective Death Penalty Act of 1996\n(“AEDPA”) governs. Hurles, 752 F.3d at 777. AEDPA\n“bars relitigation of any claim ‘adjudicated on the merits’ in\nstate court, subject only to the exceptions in §§ 2254(d)(1)\nand (2).” Harrington v. Richter, 562 U.S. 86, 98 (2011).\nRelief should not be granted unless the state court\nproceedings either “(1) resulted in a decision that was\ncontrary to, or involved an unreasonable application of,\nclearly established Federal law, as determined by the\n\f4 HURLES V. RYAN\n\nSupreme Court of the United States” or “(2) resulted in a\ndecision that was based on an unreasonable determination of\nthe facts in light of the evidence presented in the State court\nproceeding.” 28 U.S.C. § 2254(d). Clearly established law\nis limited to the Supreme Court’s holdings at the time of the\nstate court decision. Williams v. Taylor, 529 U.S. 362, 412\n(2000). We review de novo the district court’s dismissal of\nthe petition and its findings of fact for clear error. Brown v.\nOrnoski, 503 F.3d 1006, 1010 (9th Cir. 2007).\n\n 1. The prior panel remanded the issue of judicial bias for\nan evidentiary hearing on risk of actual bias. The district\ncourt conducted a thorough hearing on that issue and made\nfactual findings that no bias occurred. After reviewing the\nrecord, the briefs, and considering the arguments of counsel,\nwe cannot say that the district court committed clear error in\nits factual determinations.1\n\n 2. As to the question of ineffective assistance of\nappellate counsel, the prior panel excused the procedural\ndefault because it held that post-conviction relief counsel was\nineffective in failing to raise the ineffective assistance of\nappellate counsel claim. Hurles, 752 F.3d at 781–83. In so\nholding, the panel applied Ngyuen v. Curry, 736 F.3d 1287\n(9th Cir. 2013). Ngyuen is an extension of Martinez v. Ryan,\n566 U.S. 1 (2012), where the Supreme Court held that a\nsuccessful claim of post conviction ineffective assistance of\ncounsel can excuse a procedurally defaulted claim of\n\n\n 1\n Pursuant to the jurisprudential doctrine of law of the case, we\ndecline to reconsider matters pertaining to this issue which were decided\nin the prior appeal. Jeffries v. Wood, 114 F.3d 1484, 1488–89 (9th Cir.\n1997) (en banc). The only question presented in this appeal is whether the\ndistrict court’s factual findings on remand were clearly erroneous.\n\f HURLES V. RYAN 5\n\nineffective assistance of trial counsel. In Nguyen, we held\nthat the same reasoning applied to defaulted claims of\nineffective assistance of appellate counsel. Ngyuen, 736 F.3d\nat 1289.\n\n Subsequently, however, the Supreme Court decided\nDavila v. Davis, 137 S. Ct. 2058 (2017), in which it held that\nMartinez does not extend to procedurally defaulted claims of\nineffective assistance of appellate counsel. Id. at 2065–66.\nWhere intervening Supreme Court authority is “clearly\nirreconcilable” with prior circuit authority, the intervening\nauthority binds the panel. Miller v. Gammie, 335 F.3d 889,\n900 (9th Cir. 2003). Intervening authority is clearly\nirreconcilable if it “undercut[s] the theory or reasoning\nunderlying the prior circuit precedent.” Rodriguez v. AT & T\nMobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013)\n(quoting Miller, 335 F.3d at 900). Because Davila is clearly\nirreconcilable with our prior circuit precedent, Ngyuen does\nnot control our decision. Further, because Davila is\nintervening authority, the prudential law of the case doctrine\ndoes not bind this panel.2 Under Davila, the petitioner’s\nclaim is not viable.3\n\n 2\n See Jeffries, 114 F.3d at 1488–89 (noting that intervening\ncontrolling authority is one of the three exceptions to the law of the case\ndoctrine).\n 3\n We are bound by our precedent emphasizing that “only the Supreme\nCourt could expand the application of Martinez to other areas,” and\n“further substantive expansion” of Martinez is “not . . . forthcoming.”\nPizzuto v. Ramirez, 783 F.3d 1171, 1176–77 (9th Cir. 2015) (refusing to\napply Martinez to procedurally defaulted claims of judicial bias); see also\nHunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (rejecting the\nargument that Martinez permitted resuscitation of a procedurally defaulted\nBrady claim). Even if Davila were construed to allow an exception to the\ngeneral rule under Coleman v. Thompson, 501 U.S. 722, 752–54 (1991),\n\f6 HURLES V. RYAN\n\n Given our resolution of the case, we need not, and do not,\nreach any other issues presented by the parties.\n\n AFFIRMED.\n\n\n\n\nsuch an exception would not apply here. Trial counsel requested funding\nfor a Computer Assisted Topographic Mapping scan, which was then\ndenied by the state court on procedural grounds. Hurles suggests that\norders denied on procedural grounds should be considered as unpreserved\ntrial errors within the meaning of the potential exception identified in\nDavila, but Davila does not draw that distinction and there is no other\nsupport for that proposition in Supreme Court jurisprudence. Hurles’s\ninterpretation would considerably broaden the “limited circumstances”\nmeriting Martinez’s “highly circumscribed, equitable exception.” Id. at\n2066 (citing Martinez, 132 S. Ct. at 1320).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363972/", "author_raw": "PER CURIAM"}]}	SIDNEY R THOMAS	RICHARD A PAEZ	N RANDY SMITH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586719/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,586,720		Darnell Hines v. Ashrafe Youseff	2019-02-01	15-16145	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Andrew J. Kleinfeld and Sandra S. Ikuta, Circuit Judges, and Rosanna Malouf Peterson,* District Judge.", "parties": "", "opinions": [{"author": "Opinion by Judge Kleinfeld", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nDARNELL T. HINES, No. 15-16145\n Plaintiff-Appellant,\n D.C. No.\n v. 1:13-cv-00357-\n AWI-JLT\nASHRAFE E. YOUSEFF, M.D.;\nGODWIN C. UGUEZE, M.D.; JOSHUA\nGARZA, RNP; M. AGUIRRE,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Eastern District of California\n Anthony W. Ishii, District Judge, Presiding\n\f2 HINES V. YOUSEFF\n\nARTHUR DUANE JACKSON; LEONARD No. 15-17076\nM. LUJAN; MARCUS JACKSON;\nRODNEY TAYLOR; LACEDRIC W. D.C. No.\nJOHNSON; L. T. BELTON; NORMAN 1:13-cv-01055-\nJOHNSON; COREY LAMAR SMITH; LJO-SAB\nFREDERICK BEAGLE; ABDULLE\nABUKAR,\n Plaintiffs-Appellees,\n\n v.\n\nEDMUND G. BROWN, JR., Governor;\nMATTHEW CATE, Secretary,\nCalifornia Department of\nCorrections and Rehabilitation;\nJEFFREY BEARD, Secretary,\nCalifornia Department of\nCorrections and Rehabilitation;\nPAUL D. BRAZELTON, Warden,\nPleasant Valley State Prison; JAMES\nD. HARTLEY, Warden, Avenal State\nPrison,\n Defendants-Appellants.\n\f HINES V. YOUSEFF 3\n\nCOREY LAMAR SMITH; DION No. 15-17155\nBARNETT; CHRISTOPHER E. GARNER;\nRODNEY RAY ROBERTS; JEREMY D.C. No.\nROMO; DANNY DALLAS; FREDERICK 1:14-cv-00060-\nBEAGLE; DON BELARDES; FLOYD LJO-SAB\nBOYD; RICHARD BURKE; JOSEPH\nBUSTAMONTE; CHARLES JOSEPH\nCARTER; OTHA CLARK; DONALD\nDIBBLE; JEROME FELDER;\nCANDELARIO GARZA; JEREMY LEE\nHOLLIS; SCOTT IMUTA; GEORGE\nJOHNSON; BRUCE KOKLICH; GRADY\nMONTGOMERY; PETER ROMERO;\nJOSH THOMAS; AARON TILLIS; RENE\nVILLANUEVA; BERTRUM\nWESTBROOK; WAYNE JAMES\nWOODS; ABDULLE ABUKAR; RUBEN\nARECHIGA; JOHN WESLEY BESS;\nMICHAEL BLUE; DAVID COX;\nORLANDO CRESWELL; DANIEL\nDAYTON; PABLO DOMINGUEZ; JOSH\nDRAPER; KENJI DOMINIQUE\nJACKSON; ALBERT SHERROD;\nADRIAN SEPULVEDA; KIRK SMITH;\nHECTOR TALAMANTES; ISMAEL\nTORRES-ROBLES; KENNETH\nWASHINGTON; THOMAS WILEY;\nDARREN CHARLES WILLIAMS;\nTHEODORE WOOD; DONALD\nWRIGHT; GEORGE YOUNT; GARLAND\nBAKER; CHARLES MCQUARN;\nRICHARD ADAMS; DAVID ATZET;\nDERRICO AUBREY; DANIEL BOLAND;\n\f4 HINES V. YOUSEFF\n\nCHRISTOPHER BONDS; KEEVAN\nBURKS; KEVIN CALL; JOSEPH\nDEJESUS; GERALD W. DICKSON;\nERIC DONALDSON; ROY LEE DOSS;\nJOSEPH ALFONSO DURAN; JAMES\nFARR; JOSEPH FERRIS; ALVIN\nFLOWERS; STEPHEN FRANKLIN;\nAUBREY GALLOWAY; JOHN RAY\nGHOLAR; ROBERT GONZALEZ;\nVERNON GRANT; WALTER GREEN;\nROBERT HARRIS; SINOA HERCULES;\nBRET HILL; ADRIAN JOHNSON; ELLIS\nCLAY HOLLIS; EDWARD JONES;\nANTHONY R. JONES; LAWRENCE\nKERNER; TITI LAVEA; CLEOFAS\nLEWIS; MICHAEL MANNING; ROBERT\nMAESCHEK; DANIEL MASUSHIGE;\nELLIS MCCLOUD; BRANDON\nMCDONALD; JEFFREY MCDONALD;\nJUAN MEZA; HERSCHEL MITCHELL;\nNOEL MORALES; RAYMOND\nNEWSOM; JESUS ANTONIO PEREZ;\nHARVEY RAYBURN; JORGE AUGUSTO\nREYES; JAY ROACH; PAUL\nRICHARDSON; TYRONE SANDERS;\nJOHNNY O. SANCHEZ; EDWARD\nSPENCE; TRACY L. STEWART; LOUIS\nTHOMAS; ELONZA JESSE TYLER;\nVANCE UTLEY; BYRON WEST;\nWILLIAM WILEY; RODNEY\nWILLIAMS; ROBERT WOLTERS;\nMICHAEL MORROW; DAMOR HILL;\nCOREY CAMPBELL; ROBERT\n\f HINES V. YOUSEFF 5\n\nCONLEY; SINOHE HERCULES; JUAN\nCARLOS MARTINEZ; JUAN PENALVA;\nROBERT PRESTON, JR.; JOHN\nARTHUR RUGGLES; WILLIE STEELS;\nSOLOMON VASQUEZ; GEORGE\nLEWIS; RICHARD ARTEAGA; PABLO\nCASTANEDA; CHANEY CLIFFORD;\nCAMPBELL COREY; ROBERT\nCONLEY; ALVIN COOPER; KENNETH\nGLEN CORLEY; WALTER\nCORNETHAN; ROY CORNING; DENNIS\nDUREE; SINOHE HERCULES; CARLOS\nHERNANDEZ; DAMOR HILL; DANILO\nJALOTLOT; ASAD LEWIS; GEORGE\nLEWIS; JOE M. LEWIS; JUAN\nMARTINEZ; THOMAS MILFORD;\nDALE MILLER; DANIEL MOLEN;\nANDRE MOODY; MICHAEL\nMORROW; FREDDY NEAL; CHEK\nNGOUN; SIM PEAV; JUAN PENALVA;\nMARVIN PIERCE; ROBERT PRESTON,\nJR.; DAVID ROBINSON; RONALD\nRODRIGUEZ; JOHN ARTHUR\nRUGGLES; LORENZO SAMS; LEROY\nSMITH; WILLIE STEELS; MAURICE\nTHOMAS; TYRONE THOMPSON;\nROBERTO VASQUEZ; SOLOMON\nVASQUEZ; PATRICK WALLACE;\nXAVIER S. WILLIAMS; KENNETH\nYANCEY,\n Plaintiffs-Appellants,\n\n v.\n\f6 HINES V. YOUSEFF\n\n\nARNOLD SCHWARZENEGGER,\nGovernor; MATTHEW CATE; JAMES\nD. HARTLEY, Warden; JEFFREY A.\nBEARD; PAUL D. BRAZELTON,\nWarden; SUSAN L. HUBBARD;\nDEBORAH HYSEN; SCOTT KERNAN;\nCHRIS MEYER; TONYA R.\nROTHCHILD; TERESA SCHWARTZ;\nJAMES A. YATES, Warden; DWIGHT\nWINSLOW, M.D.; FELIX IGBINOSA,\nM.D.; EDMUND G. BROWN, JR.,\nGovernor,\n Defendants-Appellees.\n\f HINES V. YOUSEFF 7\n\n LORENZO GREGGE, JR., No. 15-17201\n Plaintiff-Appellant,\n D.C. No.\n v. 1:15-cv-00176-\n LJO-SAB\n MATTHEW CATE; RALPH DIAZ,\n Secretary, California Department of\n Corrections and Rehabilitation;* OPINION\n JAMES A. YATES, Warden,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Eastern District of California\n Lawrence J. O’Neill, Chief Judge, Presiding\n\n Argued and Submitted May 17, 2017\n San Francisco, California\n\n Filed February 1, 2019\n\n\n\n\n \n With respect to all official capacity claims, Ralph Diaz is\nsubstituted for his predecessor, Matthew Cate, as Acting Secretary for the\nCalifornia Department of Corrections and Rehabilitation. Fed. R. App. P.\n43(c)(2). The other defendants who held public office when the\ncomplaints were filed were sued in their individual capacities.\n\f8 HINES V. YOUSEFF\n\nBefore: Andrew J. Kleinfeld and Sandra S. Ikuta,* Circuit\n Judges, and Rosanna Malouf Peterson,* District Judge.\n\n Opinion by Judge Kleinfeld\n\n\n SUMMARY\n\n\n Prisoner Civil Rights\n\n In four consolidated appeals, the panel affirmed in part\nand reversed in part the district court’s decisions pertaining\nto qualified immunity for prison officials in actions alleging\nthat inmates at several California state prisons were exposed\nto a heightened risk of getting Valley Fever.\n\n Plaintiffs alleged that exposing them to a heightened risk\nof getting Valley Fever was cruel and unusual punishment in\nviolation of the Eighth Amendment. African-American\ninmates also added a challenge under the Equal Protection\nClause of the Fourteenth Amendment. They alleged that\nbecause African-American inmates were particularly likely to\n\n\n \n The original panel, consisting of Judge Kleinfeld, Judge Wardlaw,\nand Judge Peterson, heard oral argument May 17, 2017. Judge Wardlaw\nrecused herself while the case was under submission, and Judge Ikuta was\ndrawn to replace Judge Wardlaw. Judge Ikuta has read the briefs,\nreviewed the record, and listened to the tape of oral argument.\n *\n The Honorable Rosanna Malouf Peterson, United States District\nJudge for the Eastern District of Washington, sitting by designation.\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f HINES V. YOUSEFF 9\n\nget Valley Fever and suffer serious consequences, they\nshould have been segregated from the prisons with the\nhighest infection rates.\n\n The panel first held that several of the defendants could\nnot be sued at all because they were not personally involved\nin any alleged violations. The panel then held that in each of\nthe four cases on appeal, state officials were entitled to\nqualified immunity against claims that they were deliberately\nindifferent to a substantial risk of serious harm in violation of\nthe Eighth Amendment. The panel held that the specific right\nthat the inmates claimed in these cases—the right to be free\nfrom heightened exposure to Valley Fever spores—was not\nclearly established at the time the officials acted. The panel\nfurther held that the cases did not involve “clear” or\n“obvious” violations given that a federal Receiver supervised\nthe officials’ actions, and there was no evidence that society’s\nattitude had evolved to the point that involuntary exposure to\nsuch a risk violated current standards of decency.\n\n The panel held that officials were also entitled to qualified\nimmunity against claims that they racially discriminated\nagainst African-American inmates. The panel held that even\nif state officials should have been more aggressive in\nexcluding inmates whose higher risk appeared to be on\naccount of (or at least connected to) their race, that did not\nmean their conduct violated clearly established law. The\npanel concluded that inmates did not have a clearly\nestablished right to be segregated from certain Central Valley\nprisons based on their race.\n\f10 HINES V. YOUSEFF\n\n COUNSEL\n\nGregg Zucker (argued) and Victoria Niewrzol, Affeld\nGrivakes Zucker LLP, Los Angeles, California; Tara Burd\nand Benjamin Pavone, Pavone & Fonner, San Diego,\nCalifornia; Matthew B. Pavone, Law Offices of Matthew B.\nPavone, Novato, California; Frederik Spiess and Edward\nBurns, Burns & Schaldenbrand, Oceanside, California; David\nElliot, Law Offices of David Elliot, San Diego, California; for\nPlaintiffs-Appellants Smith and Gregge, et al.\n\nGreg W. Garrotto (argued), Law Offices of Garrotto &\nGarrotto, Los Angeles, California, for Plaintiff-Appellant\nHines.\n\nMilin Chun (argued), Brian M. Bush, and Raymond P.\nBoucher, Boucher LLP, Woodland Hills, California; Ian\nWallach and Jason Feldman, Feldman & Wallach, Santa\nMonica, California; Mark Ozzello, Arias Ozzello & Gignac,\nLos Angeles, California; for Plaintiffs-Appellants/Cross-\nAppellees Jackson, et al.\n\nJay Russell (argued), Supervising Deputy Attorney General;\nKevin A. Voth, Martine D. Agostino, and Maureen\nOnyeagbako, Deputy Attorneys General; Jon S. Allin and\nThomas S. Patterson, Supervising Attorneys General;\nJonathan L. Wolff, Senior Assistant Attorney General; Office\nof the Attorney General, San Francisco, California; for\nDefendants-Appellees/Cross-Appellants.\n\nKristina Doan Gruenberg and Susan E. Coleman, Burke\nWilliams & Sorensen LLP, Los Angeles, California, for\nDefendants-Appellees Igbinosa and Winslow.\n\f HINES V. YOUSEFF 11\n\n OPINION\n\nKLEINFELD, Senior Circuit Judge\n\n Inmates in several California state prisons were exposed\nto a heightened risk of getting Valley Fever, so they sued\nstate officials for money damages under 42 U.S.C. § 1983.\nThe inmates claim that exposing them to a heightened risk of\ngetting Valley Fever was cruel and unusual punishment in\nviolation of the Eighth Amendment. African-American\ninmates add a challenge under the Equal Protection Clause of\nthe Fourteenth Amendment. They claim that because\nAfrican-American inmates were particularly likely to get\nValley Fever and suffer serious consequences, they should\nhave been segregated from the prisons with the highest\ninfection rates. In each of the four cases on appeal, we hold\nthat the state officials are entitled to qualified immunity.\n\n FACTS\n\n A. The Federal Receiver\n\n For years, inmates in California state prisons have\nclaimed that the state violates the Eighth Amendment by\nfailing to provide sufficient medical care. Many inmates\nhave sued. In 2002, California signed a consent decree in one\nsuch case, Plata v. Davis. As part of that decree, California\npromised to implement specific procedures to ensure that\ninmates statewide received constitutionally adequate medical\ncare.1 But the state did not satisfy the terms of the decree, so\n\n\n\n 1\n Plata v. Davis, No. 01-cv-01351 (N.D. Cal. June 13, 2002), ECF\nNo. 68.\n\f12 HINES V. YOUSEFF\n\nin 2006 the Plata district court appointed a federal Receiver.2\nThe court conferred on the Receiver “all powers vested by\nlaw in the Secretary of the [California Department of\nCorrections and Rehabilitation] as they relate to the\nadministration, control, management, operation, and\nfinancing of the California prison medical health care\nsystem.”3 The court concurrently “suspended” the\nDepartment of Corrections and Rehabilitation’s exercise of\nthose powers “for the duration of the Receivership.”4 The\nReceiver has filed papers with the Plata district court, and the\ndistrict court has entered orders to improve medical care.5\n\n Therefore, since 2006, state officials have made decisions\nabout prison medical care while under the control of a federal\nReceiver, appointed by a federal district court to ensure\ncompliance with the Eighth Amendment. This case\nchallenges how those state officials responded to Valley\nFever outbreaks in several prisons in the Central Valley of\nCalifornia, despite the Receiver’s control.\n\n\n\n\n 2\n Plata v. Schwarzenegger, No. 01-01351, 2005 WL 2932253 (N.D.\nCal. Oct. 3, 2005), ECF No. 371.\n 3\n Plata v. Schwarzenegger, No. 01-01351 (N.D. Cal. Feb. 14, 2006),\nECF No. 473.\n 4\n Id.\n 5\n See Plata v. Schwarzenegger, 603 F.3d 1088, 1091–92 (9th Cir.\n2010) (recounting the history of the receivership); Plata v. Brown,\n754 F.3d 1070, 1079–80 (9th Cir. 2014) (providing a timeline of the\nreceivership).\n\f HINES V. YOUSEFF 13\n\n B. Valley Fever\n\n Valley Fever is a disease caused by inhaling certain\nfungal spores. The spores, which live in dry soil, are\ncommon in much of the southwestern United States. Millions\nof people live where the spores are common, and tens of\nthousands of people are infected each year. Two-thirds of\ninfections are reported in Arizona. One-fourth are reported\nin California. The rest are typically reported in Nevada,\nUtah, New Mexico, and Texas.6\n\n Once someone has been infected with the fungal spores,\nthey are immune from future infections. But infections affect\ndifferent people in different ways. About 60% of infected\npeople do not develop any symptoms. Another 30% develop\nonly mild flu-like symptoms (such as fever, cough, rash,\nheadaches, and muscle aches) that usually go away after a\nfew weeks. But around 10% of people develop a severe case\nof Valley Fever. About 8% of infections lead to a severe\nrespiratory disease. And 1–5% of infections spread from the\nlungs to other parts of the body, a serious condition known as\n“disseminated cocci.” Patients with disseminated cocci can\nbe effectively treated, but they cannot be cured. Many\ndisseminated cocci patients need expensive treatment for the\nrest of their lives to prevent their symptoms from recurring.\nIn rare cases, such as when disseminated cocci spread to the\nbrain and are not effectively treated, Valley Fever is fatal.\n\n\n 6\n See Centers for Disease Control & Prevention, Summary of\nNotifiable Infections Diseases and Conditions, 2015, 64 MORBIDITY &\nMORTALITY WKLY. REP. 1, 13 (Aug. 11, 2017); Centers for Disease\nControl & Prevention, Increase in Reported Coccidioidomycosis—United\nStates, 1998–2011, 62 MORBIDITY & MORTALITY WKLY. REP. 217, 217\n(Mar. 29, 2013).\n\f14 HINES V. YOUSEFF\n\n Some groups of people have an above-average risk of\nexperiencing severe symptoms or developing disseminated\ncocci. One risk factor is having an underlying medical\ncondition, such as HIV, diabetes, or heart disease. Another\nrisk factor is being on a medication that suppresses the\nimmune system, such as chemotherapy. Adults over 55 and\npregnant women are at a greater risk. Men are more likely\nthan women to develop disseminated cocci. And for\nunknown reasons, people of African and Filipino descent are\nseveral times more likely to develop disseminated cocci than\nare people of other racial or ethnic backgrounds.\n\n C. Valley Fever in California Prisons\n\n In 2005, California prison officials noticed a “significant\nincrease” in the number of Valley Fever cases among\nprisoners. The federal Receiver asked the California\nDepartment of Health Services to investigate the outbreak at\nPleasant Valley State Prison, the prison with the highest\ninfection rate. After its investigation, the Department of\nHealth Services issued a report in January 2007. It stated that\nPleasant Valley State Prison had 166 Valley Fever infections\nin 2005, including 29 hospitalizations and four deaths. The\ninfection rate inside the prison was 38 times higher than in\nthe nearby town and 600 times higher than in the surrounding\ncounty. According to the report, “the risk for extrapulmonary\ncomplications [was] increased for persons of African or\nFilipino descent, but the risk [was] even higher for heavily\nimmunosuppressed patients.” The report then explained that\nphysically removing heavily immunosuppressed patients\nfrom the affected area “would be the most effective method\nto decrease risk.” The report also recommended ways to\nreduce the amount of dust at the prisons. After receiving the\nhealth department’s recommendations, the Receiver convened\n\f HINES V. YOUSEFF 15\n\nits own committee. In June 2007, the Receiver’s committee\nmade recommendations that were similar to those from the\nhealth department.\n\n In response, a statewide exclusion policy went into effect\nin November 2007. The inmates who were “most susceptible\nto developing severe or disseminated cocci” would be moved\nfrom prisons in the Central Valley or not housed there in the\nfirst place. The prisons used six clinical criteria to identify\nwhich inmates were most likely to die from Valley Fever:\n“(a) All identified HIV infected inmate patients; (b) History\nof lymphoma; (c) Status post solid organ transplant;\n(d) Chronic inmmunosuppressive therapy (e.g. severe\nrheumatoid arthritis); (e) Moderate to severe Chronic\nObstructive Pulmonary Disease (COPD) requiring ongoing\nintermittent or continuous oxygen therapy; [and] (f) Inmate-\npatients with cancer on chemotherapy.” Inmates were not\nexcluded from the Central Valley prisons based on race. The\nReceiver refined the exclusion policy in 2010 and created a\nlist of “inmates who [were] at institutions within the Valley\nFever hyperendemic area that [needed] to be transferred out.”\nThe record does not indicate that the 2010 policy excluded\ninmates from the outbreak prisons based on race.\n\n In April 2012, the prison system’s own healthcare\nservices released a report examining Valley Fever in prisons.\nThe report concluded that despite the “education of staff and\ninmates” and the “exclusion of immunocompromised\ninmates,” there had been “no decrease in cocci rates.” The\nauthors found that Pleasant Valley State Prison inmates were\nstill much more likely to contract Valley Fever than citizens\nof the surrounding county. From 2006 to 2010, 7.01% of\ninmates at Pleasant Valley State Prison and 1.33% of inmates\nat Avenal State Prison were infected. By comparison, the\n\f16 HINES V. YOUSEFF\n\nhighest countywide infection rate was 0.135%, and the\nstatewide rate was just 0.007%. From 2006 to 2011,\n36 inmates in the Central Valley prisons died from Valley\nFever. Prison healthcare services also found that male\nAfrican-American inmates were twice as likely to die as other\ninmates. Each year, about 29% of the male inmates in\nCalifornia are African-American, but 50% of the inmates who\ndeveloped disseminated cocci between 2010 and 2012 were\nAfrican-American, and 71% of the inmates who died from\nValley Fever between 2006 and 2011 were African-\nAmerican.\n\n Following this report, the Receiver issued another\nexclusion policy—one that would effectively suspend the\ntransfer of African-American and diabetic inmates to the\nCentral Valley prisons.7 The state objected,8 but the district\ncourt ordered the prisons to comply with the new exclusion\npolicy.9\n\n There are several theories for why Valley Fever was more\ncommon inside the Central Valley prisons than in the\nsurrounding areas. One theory is that new construction and\nexcavation stirred up the soil, allowing the breeze to circulate\nthe fungal spores. Many of the prisons were newly\nconstructed or were being expanded during the outbreaks.\nPleasant Valley State Prison, which had the highest rate of\nValley Fever, was next door to a large construction project.\n\n\n 7\n Plata v. Brown, ECF No. 2580.\n 8\n Plata v. Brown, ECF No. 2618.\n 9\n Plata v. Brown, No. 01-01351, 2013 WL 3200587 (N.D. Cal. June\n24, 2013), ECF No. 2661.\n\f HINES V. YOUSEFF 17\n\nSome prisons did not stop the airflow into their buildings on\nwindy days. The prisons also might be built where there are\nmore fungal spores or where the spores are more virulent.\n\n Prison demographics were certainly relevant, as inmates\nwere more likely to have certain risk factors. For example,\nadult males are at greater risk than women and children, and\nthe prisons at issue in this case housed only adult males.\nAfrican-Americans were also over-represented in the prison\npopulation, and they are more likely to develop disseminated\ncocci.10 Also, it could be that many prisoners were brought\ninto the Central Valley from places that did not have the\nfungal spores, meaning that the inmates were not immune to\nthe disease when they arrived at the prisons. By contrast,\nmany civilians in the Central Valley could have been infected\nwhen they were young and healthy, and as a result, many\ncivilians might have developed immunity without\nexperiencing severe symptoms.\n\n Finally, there may be differences in identifying people\nwith Valley Fever. Inmates may be more likely than civilians\nto seek and obtain medical attention when they are sick.\nThey may know about Valley Fever and request medical\nattention, while civilians with flu-like symptoms that go away\nin a few weeks may not. Prison doctors may be more aware\nof the Valley Fever problem than many doctors or other\nmedical care providers outside the prisons. And it may be\n\n\n 10\n From 2000 to 2010, about 29% of California’s male inmates were\nAfrican-American. Just 7% of Californians were African-American. CAL.\nDEP’T OF CORR. & REHAB., CALIFORNIA PRISONERS & PAROLEES 2010, at\n20 (2011); 2010 Census Briefs, U.S. CENSUS BUREAU, at 8 (last visited\nJanuary 31, 2019), https://www.census.gov/prod/cen2010/briefs/c2010b\nr-06.pdf.\n\f18 HINES V. YOUSEFF\n\nthat Valley Fever is more widespread among the civilian\npopulation than the statistics indicate, because of lower\ndiagnosis rates rather than lower incidence rates among\ncivilians.\n\n Even though Valley Fever is more common in prisons, it\nis important to remember that it is not unique to prisons.\nMore than a million people freely live in the Central Valley,\nand many of them contract Valley Fever each year. Nor is\nthe disease confined to the Central Valley. It occurs\nthroughout the southwestern United States and is especially\ncommon in Arizona. Since the prisoners are confined\ntogether, it is especially important that Valley Fever is not\ncontagious.\n\n D. The Cases on Appeal\n\n There are four cases consolidated on appeal. Each is a\nsuit for money damages brought under 42 U.S.C. § 1983.\n\n In Smith v. Schwarzenegger, current and former inmates\nof prisons in the Central Valley who were diagnosed with\nValley Fever sued various state officials for Eighth\nAmendment violations. They alleged that the officials were\ndeliberately indifferent to the inmates’ exposure to an\nunreasonable risk of getting Valley Fever and developing\ndisseminated cocci. The defendants moved to dismiss the\ncomplaint under Rule 12(b)(6), claiming that they were\nentitled to qualified immunity. The district court granted the\nmotion to dismiss. It did not grant leave to amend the\ncomplaint. The inmates appeal.\n\n In Gregge v. Cate, prison doctors diagnosed Gregge with\ncocci-meningitis while he was incarcerated at Pleasant Valley\n\f HINES V. YOUSEFF 19\n\nState Prison. He sued the prison warden and others for\nviolating the Eighth Amendment. As in Smith, the district\ncourt dismissed the complaint under Rule 12(b)(6) based on\nqualified immunity. It did not grant leave to amend. Gregge\nappeals.\n\n In Hines v. Youseff, Hines was incarcerated at Corcoran\nState Prison when he contracted Valley Fever. He brought an\nEighth Amendment claim. The officials moved for summary\njudgment based on qualified immunity. The district court\ngranted that motion and denied leave to amend. Hines\nappeals.\n\n And in Jackson v. Brown, inmates at Pleasant Valley\nState Prison and Avenal State Prison who got Valley Fever\nsued various officials. The defendants moved for judgment\non the pleadings under Rule 12(c). The district court held\nthat the officials were entitled to qualified immunity against\nthe inmates’ Eighth Amendment claim. But a subgroup of\nAfrican-American inmates in Jackson had also alleged that\nthe officials violated the Equal Protection Clause of the\nFourteenth Amendment by intentionally failing to protect\nAfrican-American inmates, whom the officials knew had a\nheightened risk of developing disseminated cocci. The court\nheld that the officials were not entitled to qualified immunity\nagainst the Fourteenth Amendment claim. The officials\nappeal that decision. The inmates do not appeal the ruling on\ntheir Eighth Amendment claim.\n\f20 HINES V. YOUSEFF\n\n STANDARDS OF REVIEW\n\n We have jurisdiction over all four appeals.11 We do not\nhave jurisdiction over the Plata decree, and it is not on\nappeal. We review whether the officials are entitled to\nqualified immunity de novo12 and the denial of leave to\namend for abuse of discretion.13\n\n In Smith and Gregge, the district court granted the\nofficials’ Rule 12(b)(6) motions to dismiss the complaint.\nAnd in Jackson, the district court denied the officials’ Rule\n12(c) motion for judgment on the pleadings. So for those\nthree appeals, we must accept as true all of the inmates’\nfactual allegations, and we must draw all reasonable\ninferences in their favor.14 We must affirm the dismissal of\nthe Smith and Gregge complaints if those complaints do not\n“contain sufficient factual matter, accepted as true, to state a\nclaim to relief that is plausible on its face.”15 We must\nreverse the denial of judgment on the pleadings in Jackson if\n“there is no issue of material fact in dispute” and the officials\nare “entitled to judgment as a matter of law.”16\n\n\n 11\n 28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).\n 12\n Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007).\n 13\n Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017).\n 14\n Gregg v. Hawaii Dep’t of Pub. Safety, 870 F.3d 883, 886–87 (9th\nCir. 2017); Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).\n 15\n Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal\nquotation marks omitted).\n 16\n Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).\n\f HINES V. YOUSEFF 21\n\n Hines was decided at the summary judgment stage, not at\nthe pleading stage. We therefore evaluate the grant of\nsummary judgment based on the cognizable evidence. We\nmust affirm the grant of summary judgment if there are no\ngenuine issues of material fact and if, as the district court\nconcluded, the officials are entitled to judgment as a matter\nof law.17\n\n Despite these different procedural stages and legal tests,\nthe facts alleged in the Smith, Gregge, and Jackson\ncomplaints are largely identical to the evidence produced in\nHines. Each of the appeals also presents the same basic\nquestion: whether the constitutional rights that the officials\nallegedly violated were “clearly established” when the\nofficials acted. We therefore consider all four appeals\ntogether.\n\n ANALYSIS\n\n The officials in these cases are entitled to qualified\nimmunity against claims that they were deliberately\nindifferent to a substantial risk of serious harm in violation of\nthe Eighth Amendment. They are also entitled to qualified\nimmunity against claims that they racially discriminated\nagainst African-American inmates. But first, we hold that\nseveral of the defendants cannot be sued at all because they\nwere not personally involved in any alleged violations.\n\nI. PERSONAL INVOLVEMENT\n\n The inmates sued the officials under 42 U.S.C. § 1983.\nThat means the inmates must show that each defendant\n\n 17\n FED. R. CIV. P. 56(a), (c).\n\f22 HINES V. YOUSEFF\n\npersonally played a role in violating the Constitution.18 An\nofficial is liable under § 1983 only if “culpable action, or\ninaction, is directly attributed to them.”19\n\n The plaintiff in Hines argues that prison officials were\ndeliberately indifferent to a substantial risk of serious harm\nwhen they housed him in the Central Valley. But the plaintiff\nhas failed to demonstrate that defendants Joshua Garza, Dr.\nGodwin Ugeze, and Dr. Ashrafe Youseff were personally\ninvolved in any Eighth Amendment violations. Garza, a\nnurse practitioner, did not have any discretion to determine\nwhether Hines should have been excluded from prisons in the\nCentral Valley. There is also no evidence that Garza actually\ndetermined whether Hines should have been excluded from\nthe Central Valley. There is no evidence that Dr. Ugeze was\npersonally involved in determining what categories of\ninmates to exclude from the Central Valley. Instead, he was\ninstructed to simply follow the exclusion criteria developed\nby others. And there is no evidence that Dr. Youseff had any\ncontact with Hines. So the district court was right to dismiss\nthose defendants from the case.20\n\nII. CRUEL AND UNUSUAL PUNISHMENT\n\n The inmates allege that the defendant state officials\nviolated the Eighth Amendment’s prohibition on “cruel and\n\n\n 18\n Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005);\nTaylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).\n 19\n Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011).\n 20\n See Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)\n(permitting us to affirm on any ground supported by the record).\n\f HINES V. YOUSEFF 23\n\nunusual punishments” by being deliberately indifferent to the\ninmates’ heightened risk of getting Valley Fever.21 The\ndistrict courts in Smith, Gregge, and Hines held that the\nofficials are entitled qualified immunity against those claims.\nReviewing de novo, we affirm. Any Eighth Amendment\nright to be free from heightened risk of Valley Fever was not\nclearly established when the officials acted.\n\n None of the cases before us seek an injunction that would\nregulate how the state assigns inmates to the Central Valley\nor how it addresses the risk of Valley Fever. That is the\nsubject of the Plata case, which is not before us. The cases\nbefore us are only about whether individual defendants can be\nheld liable for money damages because of allegedly\nunconstitutional acts and omissions.\n\n To determine whether an official is entitled to qualified\nimmunity, we ask two questions: (1) whether the official’s\nconduct violated a constitutional right; and (2) whether that\nright was “clearly established” at the time of the violation.22\nHelling v. McKinney sets out the constitutional framework for\nEighth Amendment claims about involuntary exposure to\nenvironmental hazards.23 It held that an Eighth Amendment\nclaim against an official for unconstitutional prison\nconditions requires an inmate to prove both an objective and\na subjective factor.\n\n 21\n See U.S. CONST. amend. VIII (“Excessive bail shall not be required,\nnor excessive fines imposed, nor cruel and unusual punishments\ninflicted.”).\n 22\n Castro v. Cty. of L.A., 833 F.3d 1060, 1066 (9th Cir. 2016) (en\nbanc).\n 23\n 509 U.S. 25 (1993).\n\f24 HINES V. YOUSEFF\n\n For the objective factor, inmates must establish “that it is\ncontrary to current standards of decency for anyone to be . . .\nexposed against his will” to the hazard.24 This “requires more\nthan a scientific and statistical inquiry into the seriousness of\nthe potential harm and the likelihood that such injury to\nhealth will actually be caused.”25 Instead, courts must “assess\nwhether society considers the risk that the prisoner complains\nof to be so grave that it violates contemporary standards of\ndecency to expose anyone unwillingly to such a risk,”\nmeaning that the risk “is not one that today’s society chooses\nto tolerate.”26\n\n For the subjective factor, inmates must show that the\nofficial is “deliberately indifferent” to the inmate’s\nsuffering.27 In Farmer v. Brennan, the Supreme Court\nexplained that this standard means that an official is liable\n“only if he knows that inmates face a substantial risk of\nserious harm and disregards that risk by failing to take\nreasonable measures to abate it.”28\n\n The courts below did not decide whether exposing\ninmates to a heightened risk of Valley Fever violates the\nEighth Amendment. Neither do we. Instead, we go straight\nto the second prong of the qualified immunity analysis:\n\n\n 24\n Id. at 35.\n 25\n Id. at 36.\n 26\n Id.\n 27\n Id. at 35.\n 28\n 511 U.S. 825, 847 (1994); see also Mendiola-Martinez v. Arpaio,\n836 F.3d 1239, 1248–49 (9th Cir. 2016).\n\f HINES V. YOUSEFF 25\n\nwhether a right to not face a heightened risk was “clearly\nestablished” at the time. A right is clearly established if it\nwas “sufficiently clear that every reasonable official would\n[have understood] that what he is doing violates that right.”29\nThat is, the issue must have been “beyond debate.”30 In\ndetermining what is clearly established, we must look at the\nlaw “in light of the specific context of the case, not as a broad\ngeneral proposition.”31\n\n Applying those principles to the cases at hand, we\nconclude that the specific right that the inmates claim in these\ncases—the right to be free from heightened exposure to\nValley Fever spores—was not clearly established at the time.\nA reasonable official could have concluded that the risk was\nnot so grave that it violates contemporary standards of\ndecency to expose anyone unwillingly to such risk, or that\nexposure to the risk was lawful.\n\n A. Other Valley Fever Cases\n\n The inmates’ alleged constitutional right would be\n“clearly established” if “controlling authority or a robust\nconsensus of cases of persuasive authority” had previously\nheld that it is cruel and unusual punishment to expose\n\n\n\n\n 29\n Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation\nmarks omitted).\n 30\n Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (internal\nquotation marks omitted).\n 31\n Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal\nquotation marks omitted).\n\f26 HINES V. YOUSEFF\n\nprisoners to a heightened risk of Valley Fever.32 But no such\nprecedent exists. The inmates argue that several of our\nmemorandum dispositions clearly establish their right to not\nface an unreasonable risk of Valley Fever. But memorandum\ndispositions do not establish law.33 They are, at best,\npersuasive authority. And more importantly, none of the\ncited memorandum dispositions held that inmates have an\nEighth Amendment right to not be exposed to a heightened\nrisk of Valley Fever.34 The inmates also point us to\nunpublished district court decisions about Valley Fever\nexposure. We have previously said that unpublished district\ncourt decisions “may inform our qualified immunity\nanalysis.”35 But we have also noted that “it will be a rare\ninstance in which, absent any published opinions on point or\noverwhelming obviousness of illegality, we can conclude that\nthe law was clearly established on the basis of unpublished\ndecisions only.”36 And at most, the cited district court\nopinions show that the law was developing—not that it was\nalready clearly established.37\n\n\n 32\n Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589–90 (2018).\n 33\n See Ninth Circuit Rule 36-3(a).\n 34\n See Holley v. Scott, 576 F. App’x 670, 670 (9th Cir. 2014); Johnson\nv. Pleasant Valley State Prison, 505 F. App’x 631, 632 (9th Cir. 2013);\nJones v. Igbinosa, 467 F. App’x 604, 605 (9th Cir. 2012); Smith v.\nSchwarzenegger, 393 F. App’x 518, 519 (9th Cir. 2010).\n 35\n Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002).\n 36\n Id.\n 37\n See Clark v. Igbinosa, No. 1:10-cv-01336, 2011 WL 1043868, at\n2 (E.D. Cal. Mar. 21, 2011); James v. Yates, No. 1:08-cv-01706, 2010\nWL 2465407, at *4 (E.D. Cal. June 15, 2010).\n\f HINES V. YOUSEFF 27\n\n We therefore conclude that when the officials acted,\nexisting Valley Fever cases did not clearly establish that they\nwere violating the Eighth Amendment.\n\n B. Eighth Amendment Principles\n\n Of course, we do not require that heightened exposure to\nValley Fever must have been previously held unlawful.38 The\nqualified immunity analysis does not require a case on all\nfours. What matters is whether “existing precedent . . .\nplaced the statutory or constitutional question beyond\ndebate,” not whether the debate has already taken place.39 An\nofficer loses qualified immunity, even in novel factual\ncircumstances, if he or she commits a “clear” constitutional\nviolation.40 This rule prevents absurd results. As then-Judge\nGorsuch once explained, “some things are so obviously\nunlawful that they don’t require detailed explanation and\nsometimes the most obviously unlawful things happen so\nrarely that a case on point is itself an unusual thing. Indeed,\nit would be remarkable if the most obviously unconstitutional\nconduct should be the most immune from liability only\nbecause it is so flagrantly unlawful that few dare its\nattempt.”41\n\n But this case does not involve a “clear” or “obvious”\nviolation. The inmates must show that “every reasonable\n\n 38\n See Anderson v. Creighton, 483 U.S. 635, 640 (1987).\n 39\n Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).\n 40\n Farmer, 511 U.S. at 847.\n 41\n Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir.\n2015).\n\f28 HINES V. YOUSEFF\n\nofficial would [have understood]” that exposing them to a\nheightened risk of Valley Fever violated the Eighth\nAmendment.42 More specifically, they must show that no\nreasonable officer could have thought that free society\ntolerated that risk.43 They have not met that burden for two\nreasons: a federal court supervised the officials’ actions, and\nthere is no evidence that “society’s attitude had evolved to the\npoint that involuntary exposure” to such a risk “violated\ncurrent standards of decency,”44 especially given that millions\nof free individuals tolerate a heightened risk of Valley Fever\nby voluntarily living in California’s Central Valley and\nelsewhere. Those two facts mean that a reasonable official\ncould have thought that he or she was complying with the\nConstitution.\n\n It is especially significant that state officials could have\nreasonably believed that they were not violating the inmates’\nEighth Amendment rights because the officials reported to the\nfederal Receiver. The Plata district court appointed a federal\nReceiver in 2006—just a year after the Valley Fever outbreak\nbegan. The receiver entered orders about Valley Fever.\nStudies were conducted, and in 2010, the Receiver amended\nthe policy excluding certain inmates from the Central Valley.\nThus the federal Receiver appointed by the federal court to\nassure Eighth Amendment compliance actively managed the\nstate prison system’s response to Valley Fever.\n\n\n\n 42\n Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation\nmarks omitted).\n 43\n See Helling v. McKinney, 509 U.S. 25, 36 (1993).\n 44\n Id. at 29.\n\f HINES V. YOUSEFF 29\n\n Because the Receiver oversaw prison medical care and\nprotective measures regarding Valley Fever, state officials\ncould have reasonably believed that their actions were\nconstitutional so long as they complied with the orders from\nthe Receiver and the Plata court. The inmates do not claim\nthat state officials defied the Plata Receiver. The Receiver\npromulgated orders directed specifically to the Valley Fever\nproblem, and the inmates do not claim that the defendants\ndefied those orders and that the defiance harmed them. The\ninmates fault the officials for not following various\nrecommendations made before 2013. For example, in 2007\nthe California Department of Health Services recommended\ncovering the prison grounds, but the soil was not stabilized\nuntil 2011 after the prisons got funding from the Receiver.\nOther recommendations were never adopted. But the inmates\ndo not argue that the officials disobeyed the Receiver’s\nbinding orders, only that the officials did not promptly follow\nrecommendations that were not orders. In determining what\nconstituted the constitutionally sufficient level of protection,\nan official could reasonably have thought that it sufficed to\ncomply with the Receiver’s orders.45 As we once stated in a\ndifferent context, “no reasonable prison official would\nunderstand that executing a court order without investigating\nits potential illegality would violate [a] prisoner’s right to be\nfree from cruel and unusual punishment.”46\n\n Second, millions of people live in the Central Valley.\nThis includes many African-Americans and others with a\nheightened risk of getting Valley Fever. Many people also\nwork in the same prisons where the inmates live, exposed to\n\n\n 45\n Stein v. Ryan, 662 F.3d 1114, 1119–20 (9th Cir. 2011).\n 46\n Id.\n\f30 HINES V. YOUSEFF\n\nthe same fungal spores as the inmates. These people\nvoluntarily live and work in the Central Valley despite a\nheightened risk of getting Valley Fever. Likewise, people\nlive in Arizona despite the risk of getting Valley Fever. Each\nyear, two-thirds of all Valley Fever cases are reported in\nArizona. And from 1998 to 2016, the infection rate in\nArizona nearly tripled.47 The infection rate is particularly\nhigh around Phoenix, Arizona.48 Yet Arizona’s population\ngrew an estimated 35.1% between 2000 and 2016.49 Where\nlarge numbers of people are exposed to a known risk, and yet\nno societal consensus has emerged that the risk is intolerably\ngrave, a reasonable official can infer that the risk is one\nsociety is prepared to tolerate, like the risk of being injured or\nkilled in a traffic accident.\n\n Because so many people freely chose to live in the\nCentral Valley despite the Valley Fever risk, and there is no\nevidence in the record that “society’s attitude had evolved to\nthe point that involuntary exposure” to either the heightened\nrisk inside prison or the lower risk outside prison “violated\ncurrent standards of decency,”50 it would not have been\n“clear” to every reasonable officer that the inmates had a\nvalid claim under Helling. The inmates have failed to show\nthat every reasonable officer would have thought that “it\n\n\n 47\n ARIZ. DEP’T OF HEALTH SERVS., VALLEY FEVER 2016 ANNUAL\nREPORT 20 (2017).\n 48\n Id. at 16, 22.\n 49\n American FactFinder, U.S. CENSUS BUREAU (last visited July 16,\n2018), https://factfinder.census.gov/bkmk/cf/1.0/en/state/arizona/popula\ntion/pep_est.\n 50\n Helling v. McKinney, 509 U.S. 25, 29 (1993).\n\f HINES V. YOUSEFF 31\n\nviolate[d] contemporary standards of decency to expose\nanyone involuntarily to such a risk,” that is, that the risk of\nValley Fever in the prisons was “not one that today’s society\nchooses to tolerate.”51\n\n We therefore affirm the district court rulings in Hines,\nSmith, and Gregge holding that the officials are entitled to\nqualified immunity against the Eighth Amendment claims.\nWe also hold that the district courts did not abuse their\ndiscretion in denying the inmates’ motions for leave to\namend. Any attempt to amend the pleadings would be futile\nbecause we see no way to hold that the officials violated a\nclearly established Eighth Amendment right.\n\nIII. RACIAL DISCRIMINATION\n\n For unknown reasons, Valley Fever disproportionally\naffects African-Americans. State officials did not exclude\nAfrican-American inmates from the outbreak prisons until a\nfederal court ordered them to do so in 2013. Some of the\ninmates in Jackson allege that this failure violated the Equal\nProtection Clause of the Fourteenth Amendment.52\nAccording to the complaint, the officials “intentionally\nfailed” to exclude African-American inmates from Pleasant\nValley and Avenal State Prisons (or otherwise reduce the risk\nof harm) because the officials wanted to harm African-\nAmerican inmates. Thus, the inmates allege, it was\ndiscriminatory to adopt a race-neutral exclusion policy that\nexcluded inmates from those prisons based solely on medical\n\n\n 51\n Id. at 36 (emphasis in original).\n 52\n See U.S. CONST. amend XIV, § 1 (“No state shall . . . deny to any\nperson within its jurisdiction the equal protection of the laws.”).\n\f32 HINES V. YOUSEFF\n\nconditions. That is, they allege it was discriminatory not to\ndiscriminate. On a motion for judgment on the pleadings, the\ndistrict court held that the officials lacked qualified immunity.\nThe officials appealed, and we reverse. We address an\nunusual Equal Protection claim that it was a denial of equal\nprotection not to segregate prisoners by race.\n\n The district court analyzed this case as being about “the\nright to non-discriminatory administration of prison services.”\nThe district court and the inmates both rely on Elliot-Park v.\nManglona,53 but that case is inapposite. In Elliot-Park, a\nMicronesian drunk driver crashed into a Korean driver.54 The\ninvestigating police officers were all Micronesian. The\nMicronesian driver told an officer that “he had ‘blacked out’\nwhile driving,” but the officers did not test him for\nintoxication or arrest him for drunk driving.55 The Korean\ndriver sued the officers, arguing that their failure to\ninvestigate or arrest the drunk driver was motivated by racial\nanimus against Koreans. We held that the officers lacked\nqualified immunity because “[t]he right to non-discriminatory\nadministration of protective services is clearly established.”56\nBecause the officers considered race when deciding whom to\nhelp, strict scrutiny applied.\n\n But Elliot-Park did not establish that state actors could\nviolate the Equal Protection Clause by adopting a race-neutral\n\n\n 53\n 592 F.3d 1003 (9th Cir. 2010).\n 54\n Id. at 1005.\n 55\n Id. at 1006.\n 56\n Id. at 1008.\n\f HINES V. YOUSEFF 33\n\npolicy. Implicit in our holding in that case was the fact that\npolice officers typically arrest drunk drivers. The officers\ndiverged from the norm, allegedly because of racial animus.\nThat is, they allegedly treated Korean drivers differently than\nthey treated Micronesian drivers.\n\n Here, by contrast, the officials did not have one policy for\nAfrican-American inmates and another for white inmates.\nAll inmates were treated the same, regardless of race. The\nofficials are said to have violated the Constitution precisely\nbecause they treated the inmates the same regardless of\nrace—not, as in Elliot-Park, because they treated people\ndifferently because of their race. So for the officials here to\nlose qualified immunity, it would have to have been clearly\nestablished that treating people of all races the same violated\nthe Equal Protection Clause. For three reasons, it would not\nhave been clear to a reasonable person, acting on the\nofficials’ information and motivated by their purposes,57 that\nthe Equal Protection Clause required excluding African-\nAmerican inmates from these prisons based on race.\n\n First, from 2006 onward, a federal Receiver supervised\nthe prisons. During that time, multiple experts gave\nrecommendations. An exclusion policy went into effect in\n2007. The Receiver modified that policy in 2010.58 It was\nnot until April 2012 that experts proposed excluding African-\n\n\n\n\n 57\n See Norse v. City of Santa Cruz, 629 F.3d 966, 974 (9th Cir. 2010)\n(en banc) (articulating a similar rule in a First Amendment retaliation\ncase).\n 58\n Plata ECF No. 2617, at 2–3; id. ECF No. 2617-2, at 2.\n\f34 HINES V. YOUSEFF\n\nAmericans from the Central Valley.59 The Receiver did not\nformally recommend a policy that would exclude African-\nAmericans until November 2012.60 The inmates note that the\nprisons objected to excluding African-Americans from the\naffected prisons. But the inmates do not argue that the\nprisons failed to obey the district court’s order once that order\nwas made. And again, since 2006, the prisons were under the\nReceiver’s supervision. The officials adopted exclusion\npolicies in accord with the Receiver’s directions and under\nthe Receiver’s watchful eye. Therefore, an official could\nhave reasonably believed that the policies about excluding (or\nnot excluding) African-Americans from Central Valley\nprisons did not violate the Equal Protection Clause.\n\n There is a second reason why the officials have qualified\nimmunity: the Constitution generally demands race neutrality.\nOver and over again, the Supreme Court has unambiguously\nheld that “all racial classifications” are invalid unless they\npass strict scrutiny.61 That is, an express racial classification\n(like the ones the inmates want) is presumptively\n\n\n 59\n Plata ECF No. 2580-3, at 13.\n 60\n Plata ECF No. 2601, at 3. The Receiver did not want to rely\n“solely on racial classifications,” id. at 7, so it crafted a risk-based cutoff\nthat had the effect of excluding African-Americans, inmates of “other\nraces” (e.g., Filipinos), and those over 55—but not Latino/Hispanic or\nwhite inmates, id. at 8. It is clear that the Receiver considered race, not\njust risk. Id. at 12. And being African-American is now, under the\nReceiver’s cutoff, reason enough to keep an inmate out of the Central\nValley prisons.\n 61\n Johnson v. California, 543 U.S. 499, 505 (2005); Gratz v.\nBollinger, 539 U.S. 244, 270 (2003); Adarand Constructors, Inc. v. Peña,\n515 U.S. 200, 227 (1995); Shaw v. Reno, 509 U.S. 630, 650 (1993); see\nalso, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 312 (2013).\n\f HINES V. YOUSEFF 35\n\nunconstitutional. It can survive only if the state proves that\nthe classification is “narrowly tailored” to achieving a\n“compelling” state interest.62 Even so-called “benign” racial\nclassifications must satisfy strict scrutiny.63 In Johnson v.\nCalifornia, prison inmates challenged a policy of temporarily\nsegregating inmates based on race.64 Even though the prison\nadopted the policy to avoid racial gang violence, the Supreme\nCourt plainly held that strict scrutiny applied.65\n\n Mitchell v. Washington demonstrates how strict scrutiny\napplies to race-based medical decisions.66 There, an African-\nAmerican inmate with Hepatitis C asked a prison doctor to\ntreat him with certain drugs. The doctor did not prescribe the\ndrugs because they “had been largely unsuccessful on\nAfrican-American males” with Hepatitis C.67 The inmate\nsued the doctor on the theory that basing treatment decisions\non race violated the Equal Protection Clause. We held that\nstrict scrutiny applied because “even medical and scientific\ndecisions are not immune from invidious and illegitimate\n\n\n\n 62\n Johnson, 543 U.S. at 505 (quoting Adarand, 515 U.S. at 227).\n 63\n Id. (citing Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Adarand,\n515 U.S. at 226; and Shaw, 509 U.S. at 650).\n 64\n Id. at 502–03.\n 65\n Id. at 507–09. The Supreme Court remanded the case so that a\nlower court could determine whether the policy survived scrutiny, id. at\n515, but the parties settled before a lower court decided that issue.\n 66\n 818 F.3d 436 (9th Cir. 2016).\n 67\n Id. at 441.\n\f36 HINES V. YOUSEFF\n\nrace-based motivations and purposes.”68 Even though the\ndoctor might have had good intentions and good data—the\ninmate later got the demanded treatment, and it was\nunsuccessful—“there is simply no way of determining what\nclassifications are benign or remedial and what classifications\nare in fact motivated by illegitimate notions of racial\ninferiority or simple racial politics.”69 The doctor did not\ngive any compelling reason for why he considered the\ninmate’s race, so he violated the Equal Protection Clause.70\n\n Third, a reasonable official could have believed that not\nexcluding African-Americans from the prisons was consistent\nwith the scientific data and pre-2012 expert\nrecommendations. The California Department of Health\nServices began investigating Valley Fever at Pleasant Valley\nState Prison in 2005. It summarized its findings in a January\n2007 report that assessed the relative risk of contracting\nValley Fever for various populations. Overall, inmates with\na chronic medical condition had a 2.7 “relative risk,” meaning\nthat they were 2.7 times more likely to contract Valley Fever\nthan inmates without a chronic condition. Inmates with\npulmonary conditions had a 3.8 relative risk. Diabetics had\na 2.7 relative risk. Those with chronic heart conditions had\n\n\n 68\n Id. at 444.\n 69\n Id. at 445 (quoting Shaw, 509 U.S. at 642–43).\n 70\n Id. at 446; cf. Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015)\n(holding that because a prison had “an objectively strong legal basis for\nbelieving” that “exempting prisoners from race-neutral [housing policies]\non the basis of their religious beliefs” would violate the Equal Protection\nClause, the Religious Land Use and Institutionalized Persons Act did not\nprotect a white supremacist inmate that had a religious objection to being\nhoused with non-white inmates).\n\f HINES V. YOUSEFF 37\n\na 1.6 relative risk. Inmates over age 40 had a 1.6 relative\nrisk. And African-American inmates had a 1.9 relative risk\ncompared to white inmates.\n\n According to the report, 47% of African-American\ninmates’ risk was due to race alone. But the report also\nestimated that removing African-American inmates from the\nprison would only reduce the number of Valley Fever cases\nby, at most, 16%. And even though being African-American\nwas a risk factor for getting Valley Fever, the report said that\nbeing African-American “was not associated with more\nsevere disease.” The two biggest risks were having a chronic\nmedical condition and being housed in a facility with more\noutdoor exposure. So the report concluded that targeting\nchronic conditions and outdoor exposure could do more to\ndecrease Valley Fever than targeting race or age. Based on\nthese relative risks, the state health department recommended\nthe following:\n\n Consider relocating the highest risk groups to\n areas that are not hyper-endemic for [the\n fungal spores]. Previous studies have\n suggested that the risk for extrapulmonary\n complications is increased for persons of\n African or Filipino descent, but the risk is\n even higher for heavily immunosuppressed\n patients. In this investigation, we found an\n increased risk among persons with chronic\n medical conditions, especially pulmonary\n conditions. Prevention efforts are critical for\n these higher risk populations and may\n mitigate the risk, but physical removal of\n these highest risk groups from highly endemic\n\f38 HINES V. YOUSEFF\n\n regions, if possible, would be the most\n effective method to decrease risk.\n\n A reasonable official could have read this report and its\nrecommendations and concluded that African-Americans did\nnot need to be excluded from the Central Valley based on\nrace. Even though African-American inmates had a higher\nrisk of getting Valley Fever than did white inmates, those\nwith chronic diseases typically had even higher risks. And\nbecause nearly one-third of inmates were African-American,\na reasonable official could have decided that it was better to\ntry less burdensome measures first.\n\n In short, it was reasonable to exclude inmates based on\nmedical conditions rather than based on race. Even if state\nofficials should have been more aggressive in excluding\ninmates whose higher risk appeared to be on account of (or at\nleast connected to) their race, that does not mean their\nconduct violated clearly established law. The inmates did not\nhave a clearly established right to be segregated from certain\nCentral Valley prisons based on their race. We therefore\nreverse the Jackson court’s ruling on the equal protection\nclaim.71\n\n CONCLUSION\n\n We are sympathetic to the inmates’ plight. Valley Fever\nis a serious and potentially fatal disease. When state officials\nknow that inmates face a substantial risk of serious harm, the\nofficials are constitutionally required to take reasonable steps\n\n\n\n 71\n Regarding the claim that the officials violated the Equal Protection\nClause by failing to make the prisons safe, the same analysis applies.\n\f HINES V. YOUSEFF 39\n\nto abate that risk.72 State officials cannot shut their eyes to\ninmate suffering; they are responsible for the safety of the\npeople in their custody.73 But it would not have been\n“obvious” to any reasonable official that they had to\nsegregate prisoners by race or do more than the federal\nReceiver told them to do. So we conclude that the defendants\nare entitled to qualified immunity. The rights that the inmates\nclaim were not clearly established when the officials acted.\nGranting leave to amend would be futile. We therefore\nAFFIRM the judgments in Hines, Gregge, and Smith, and we\nREVERSE the judgment on appeal in Jackson.\n\n\n\n\n 72\n Farmer v. Brennan, 511 U.S. 825, 847 (1994).\n 73\n DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,\n199 (1989); Estelle v. Gamble, 429 U.S. 97, 103–04 (1976).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363973/", "author_raw": "Opinion by Judge Kleinfeld"}]}	ANDREW J KLEINFELD	SANDRA S IKUTA	ROSANNA MALOUF PETERSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586720/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,586,721		Cftc v. James Crombie	2019-02-01	13-17403	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, * District Judge.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n U.S. COMMODITY FUTURES TRADING No. 13-17403\n COMMISSION,\n Plaintiff-Appellee, D.C. No.\n 4:11-cv-04577-\n v. CW\n\n JAMES DEVLIN CROMBIE,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Claudia Wilken, Senior District Judge, Presiding\n\n Argued and Submitted December 19, 2018\n San Francisco, California\n\n Filed February 1, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, * District Judge.\n\n Opinion by Judge Berzon\n\n\n\n \n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n\f2 U.S. CFTC V. CROMBIE\n\n SUMMARY \n\n\n Commodity Exchange Act\n\n The panel affirmed in part and vacated in part the district\ncourt’s judgment in favor of the Commodity Futures Trading\nCommission (the “Commission”) in a civil enforcement\nbrought against James D. Crombie, concerning false\nstatements made to the National Futures Association\n(“NFA”) during a March 2011 investigation.\n\n The Commission alleged that by making misstatements\nto the NFA, Crombie violated 7 U.S.C. § 13(a)(4) of the\nCommodity Exchange Act, which makes it unlawful\n“willfully” to make false statements or provide false\ndocuments to certain regulatory organizations, including the\nNFA. The district court determined that Crombie on four\nseparate occasions willfully violated § 13(a)(4).\n\n The panel held that the district court erred in applying\nthe civil meaning of “willfully,” not the generally applicable\ncriminal meaning. The panel further held that the meaning\nof “willfully” as used in § 13(a)(4) cannot sensibly vary\ndepending on whether it is relied upon directly, in a criminal\nfraud case, or by incorporation into § 13a-1(a), in a civil\ncase. The panel concluded that in § 13(a)(4) “willfully”\nmust have the traditional meaning ascribed to the term in the\ncontext of criminal prohibitions against fraud: “intentionally\nundertaking an act that one knows to be wrongful.” United\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f U.S. CFTC V. CROMBIE 3\n\nStates v. Tarallo, 380 F.3d 1174, 1188 (9th Cir. 2004),\namended by 413 F.3d 928 (9th Cir. 2008).\n\n Although the district court did not apply the heightened\ncriminal standard for willful conduct, the panel nonetheless\naffirmed the grant of summary judgment to the Commission\non the § 13(a)(4) claims after applying, de novo, the correct\nmeaning of “willfully.”\n\n Concerning the remedies imposed by the district court,\nthe panel held that the district court properly awarded\nrestitution. The panel vacated in part the district court’s\norder issuing a permanent injunction against Crombie. The\npanel held that as to §§ 4 and 5(a), (d), (e), (f), and (g) of the\npermanent injunction, the connection between the violations\nfound and the prohibitions were sufficiently self-evident;\nand the panel concluded that the district court’s inclusion of\nthose future restraints on Crombie was not an abuse of\ndiscretion. The panel held that as to §§ 5(b) and (c) of the\npermanent injunction, the path from the violations found to\nthe prohibitions ordered was not clear; and the panel\nremanded for further explanation as to those parts of the\ninjunction.\n\f4 U.S. CFTC V. CROMBIE\n\n COUNSEL\n\nJared L. Gardner (argued), Perkins Coie LLP, Anchorage,\nAlaska; Lauren Elizabeth Watts Staniar, Perkins Coie LLP,\nSeattle, Washington; for Defendant-Appellant.\n\nMartin B. White (argued), Assistant General Counsel;\nJonathan P. Robell, Senior Trial Attorney; Robert A.\nSchwartz, Deputy General Counsel; Jonathan L. Marcus,\nGeneral Counsel; Daniel J. Davis, General Counsel;\nCommodity Futures Trading Commission, Washington,\nD.C.; for Plaintiff-Appellee.\n\n\n OPINION\n\nBERZON, Circuit Judge:\n\n We are asked in this case to answer a recurrent question:\nWhat is the meaning of “willfully” in a federal statute? This\nmalleable term may in some cases create difficult questions\nof statutory interpretation. See, e.g., Ratzlaf v. United States,\n510 U.S. 135, 141 (1994). Here, it does not. As we shall\nexplain, in 7 U.S.C. § 13(a)(4), a provision within the\nCommodity Exchange Act (“Act”), “willfully” must have\nthe traditional meaning ascribed to the term in the context of\ncriminal prohibitions against fraud: “intentionally\nundertaking an act that one knows to be wrongful.” 1 United\nStates v. Tarallo, 380 F.3d 1174, 1188 (9th Cir. 2004),\namended by 413 F.3d 928 (9th Cir. 2005).\n\n\n\n 1\n All statutory citations unless otherwise noted are to provisions of\nthe Commodity Exchange Act, 7 U.S.C. § 1.\n\f U.S. CFTC V. CROMBIE 5\n\n I\n\n This appeal arises from a civil enforcement action\nbrought by the Commodity Futures Trading Commission\n(“Commission”) against James D. Crombie. In March 2010,\nCrombie co-founded Paron Capital Management, LLC\n(“Paron”), an investment firm. Paron used a computer\nmodel developed by Crombie to invest in certain futures 2 on\nbehalf of clients. The Commission alleged that Crombie\nmisled potential investors by misrepresenting in marketing\nmaterials the past performance of Paron’s computer model\nand misstating the amount of assets already under Paron’s\nmanagement, in violation of 7 U.S.C. §§ 6b(a)(1) and 6o(1). 3\n\n\n\n 2\n “Futures” are contracts that allow an investor to purchase a\nparticular commodity—such as crude oil, natural gas, corn, soybeans or\nwheat—at a set future date for a set price. Paron traded stock market\nindex futures, which are futures contracts based on the future price of a\nspecific stock market index, such as the S&P 500 or the Dow Jones\nIndustrial Average. The Act covers these futures. See 7 U.S.C. § 1a(35);\nCommodity Futures Trading Comm’n & Sec. & Exch. Comm’n, Release\nNo. 34-49469, Joint Order Excluding Indexes Comprised of Certain\nIndex Options from the Definition of Narrow-Based Security Index\n(Mar. 25, 2004), https://www.sec.gov/rules/exorders/34-49469.htm.\n\n 3\n Section 6b(a)(1)(A)–(B) provides:\n\n It shall be unlawful— (1) for any person in or in\n connection with any order to make, or the making of,\n any contract of sale of any commodity in interstate\n commerce or for future delivery that is made, or to be\n made, on or subject to the rules of a designated\n contract market, for or on behalf of any other person\n . . . (A) to cheat or defraud or attempt to cheat or\n defraud the other person; [or] (B) willfully to make or\n cause to be made to the other person any false report\n\f6 U.S. CFTC V. CROMBIE\n\nThe Commission also alleged that Crombie made false\nstatements to the National Futures Association (“NFA”)\nduring a March 2011 investigation by that industry group\ninto Paron. The Commission claimed that by making these\nmisstatements to the NFA, Crombie violated 7 U.S.C.\n§ 13(a)(4), which makes it unlawful “willfully” to make\nfalse statements or provide false documents to certain\nregulatory organizations, including the NFA. 4\n\n The Commission filed suit in the Northern District of\nCalifornia in September 2011. After discovery, the district\ncourt granted summary judgment to the Commission. The\ncourt determined that Crombie violated § 13(a)(4) on four\n\n or statement or willfully to enter or cause to be entered\n for the other person any false record.\n\n7 U.S.C. § 6b(a)(1)(A)–(B).\n\n Section 6o(1) provides:\n\n It shall be unlawful for a commodity trading advisor,\n associated person of a commodity trading advisor,\n commodity pool operator, or associated person of a\n commodity pool operator, by use of the mails or any\n means or instrumentality of interstate commerce,\n directly or indirectly—(A) to employ any device,\n scheme, or artifice to defraud any client or participant\n or prospective client or participant; or (B) to engage in\n any transaction, practice, or course of business which\n operates as a fraud or deceit upon any client or\n participant or prospective client or participant.\n\n7 U.S.C. § 6o(1).\n 4\n The Commission also brought claims against Paron. Those claims\nwere settled in September 2012.\n\f U.S. CFTC V. CROMBIE 7\n\nseparate occasions, and that Crombie also violated\n§§ 6b(a)(1)(A)–(B) and 6o(1). 5\n\n Because the Commission did not request any relief in its\nsummary judgment motion, the district court ordered the\nCommission to file a motion for requested relief and a\nproposed judgment. The Commission filed that motion and\na proposed order and judgment two weeks later, in August\n2013.\n\n In November 2013, the district court granted the\nCommission’s motion in an order that almost entirely\nadopted the language of the Commission’s proposed order,\nwithout explaining why the particular relief was chosen. The\norder requires Crombie to pay a $750,000 civil penalty to the\nCommission and $746,460.28 in restitution, plus pre- and\npost-judgment interest, to Paron clients. The order also\npermanently enjoins Crombie from violating various\nprovisions of the Act, as well as from engaging in a broad\nrange of conduct related to the trading of investments\nregulated by the Act. 6 Among other provisions, the order\npermanently enjoins Crombie from “directly or indirectly\n. . . [e]ntering into any transactions involving commodity\nfutures, options on commodity futures, commodity options\n. . . , security futures products, swaps, . . . and/or foreign\ncurrency . . . for his own personal account or for any account\nin which he has a direct or indirect interest,” or “[h]aving\n\n 5\n The district court also denied summary judgment as to additional\nclaims that Crombie violated § 13(a)(4) by making other false statements\nto the NFA. The Commission did not pursue these additional claims\nagainst Crombie.\n 6\n The court granted the injunction and ordered the restitution\nrequested by the Commission. With regards to the civil penalty, the\nCommission had requested that the court impose a civil fine of $980,000.\n\f8 U.S. CFTC V. CROMBIE\n\nany commodity futures, options on commodity futures,\ncommodity options, security futures products, swaps, and/or\n[foreign currency] contracts traded on his behalf.”\n\n II\n\n Crombie now appeals the district court’s grant of\nsummary judgment to the Commission. We review this\nchallenge de novo. See, e.g., Rocky Mountain Farmers\nUnion v. Corey, 730 F.3d 1070, 1086 (9th Cir. 2013).\n\n A\n\n On summary judgment, the district court determined that\nCrombie on four separate occasions willfully violated\n§ 13(a)(4). Crombie does not contest that he made false\nstatements to the NFA during its investigation of Paron. He\nargues only that the district court misinterpreted the meaning\nof “willfully” for the purposes of the § 13(a)(4) claims, and\nthat under the correct standard, there are genuine issues of\nmaterial fact as to whether he acted willfully when he made\nthree separate false statements to the NFA during its\ninvestigation of Paron. 7\n\n 1\n\n “The word ‘willfully’ is sometimes said to be ‘a word of\nmany meanings.’” Bryan v. United States, 524 U.S. 184, 191\n(1998) (quoting Spies v. United States, 317 U.S. 492, 497\n(1943)). But the proper meaning of “willfully” in § 13(a)(4)\nis unambiguous.\n\n\n 7\n Crombie does not contest that, under either standard, he willfully\nmade false representations to the NFA with regards to a fourth category\nof false information.\n\f U.S. CFTC V. CROMBIE 9\n\n Section 13(a)(4) is a criminal statute, with stiff penalties.\n“It shall be a felony punishable by a fine not more than\n$1,000,000 or imprisonment for not more than 10 years, or\nboth, together with the costs of prosecution, for . . . . [a]ny\nperson willfully to falsify, conceal, or cover up by any trick,\nscheme, or artifice a material fact, make any false, fictitious,\nor fraudulent statements or representations, or make or use\nany false writing or document knowing the same to contain\nany false, fictitious, or fraudulent statement or entry to a\nregistered entity, board of trade, or futures association,” such\nas the NFA. 7 U.S.C. § 13(a)(4). The Act also gives the\nCommission the ability to enforce this criminal provision via\ncivil suit. 7 U.S.C. § 13a-1(a), (d). Section 13a-1(a)\nprovides that whenever any person “has engaged, is\nengaging, or is about to engage in any act or practice\nconstituting a violation of any provision of [the Act] or any\nrule, regulation, or order thereunder, . . . the Commission\nmay bring an action . . . to enjoin such act or practice, or to\nenforce compliance with [the Act] . . . .”\n\n “As a general matter, when used in the criminal context,\na ‘willful’ act is one undertaken with a ‘bad purpose.’”\nBryan, 524 U.S. at 191. There are certain contexts in which\na showing of bad purpose requires a showing that the\ndefendant knew his actions were unlawful. See id. at 192;\nsee also Ratzlaf, 510 U.S. at 140–46. But as to statutes that\ncriminalize the making of false or misleading statements and\nother fraudulent activity—conduct that is obviously\nwrongful—we have repeatedly held that “‘willfully’ . . .\ndoes not require that the actor know specifically that the\nconduct was unlawful.” Tarallo, 380 F.3d at 1188 (emphasis\nomitted); see also United States v. English, 92 F.3d 909,\n914–16 (9th Cir. 1996). Rather, a defendant makes false\nstatements “willfully” for purposes of a criminal statute\nprohibiting such statements if the defendant knew the\n\f10 U.S. CFTC V. CROMBIE\n\nstatements were false when made, “or else made them with\na reckless disregard for whether they were false.” Tarallo,\n380 F.3d at 1188–89.\n\n In contrast, in civil contexts, a person acts “willfully” if\nshe “intentionally does an act which is prohibited,—\nirrespective of evil motive or reliance on erroneous advice\n. . . .” Lawrence v. CFTC, 759 F.2d 767, 773 (9th Cir. 1985)\n(quoting Flaxman v. CFTC, 697 F.2d 782, 787 (7th Cir.\n1983)). When adjudicating the § 13(a)(4) claims on\nsummary judgment, the district court applied the civil\nmeaning of “willfully,” not the generally applicable criminal\nmeaning. The Commission maintains that the district court\nwas correct, because the Commission is pursuing violations\nof § 13(a)(4) via a civil suit. We cannot agree.\n\n The term “willfully” appears in § 13(a)(4), a criminal\nprovision of the Act, not in § 13a-1(a), the provision of the\nAct permitting civil enforcement. Nor does § 13a-1(a)\nprescribe a separate mens rea that applies in civil-\nenforcement proceedings. It just states that the Commission\nmay bring an action to enforce compliance with “any\nprovision” of the Act. 7 U.S.C. § 13a-1(a).\n\n Given this context, the meaning of “willfully” as used in\n§ 13(a)(4) cannot sensibly vary depending on whether it is\nrelied upon directly, in a criminal fraud case, or by\nincorporation into § 13a-1(a), in a civil case. And because it\nappears in a criminal statute, “willfully” means\n“intentionally undertaking an act that one knows to be\nwrongful; ‘willfully’ in this context does not require that the\nactor know specifically that the conduct was unlawful.”\nTarallo, 380 F.3d at 1188. A defendant makes false\nstatements “willfully” under this standard if the defendant\nknew the statements were false, “or else made them with a\nreckless disregard for whether they were false.” Id.\n\f U.S. CFTC V. CROMBIE 11\n\n 2\n\n Although the district court did not apply this somewhat\nheightened criminal standard for willful conduct, we\nnonetheless affirm the grant of summary judgment to the\nCommission on the § 13(a)(4) claims after applying, de\nnovo, the correct meaning of “willfully.” For each of the\nthree claims disputed by Crombie, we are convinced that\nthere is no genuine dispute of material fact as to whether\nCrombie acted willfully under the Tarallo standard.\n\n During the NFA’s investigation, Crombie provided the\nNFA with statements purporting to show the value of\naccounts Crombie had managed between 2006 and 2008 as\npart of a prior venture called JDC Ventures (“JDC”). The\nstatements provided by Crombie stated that the JDC-\nmanaged accounts were worth over $13.8 million in\nFebruary 2008, and over $24 million in December 2008. In\nfact, the accounts had a steady balance of only $40 from late\n2007 onward; had no trades in 2008; and closed in February\n2008. At his deposition, Crombie testified that he was aware\nof the day-to-day performance of the accounts he had\nmanaged.\n\n These facts unequivocally establish that when Crombie\nprovided the NFA the inaccurate account statements, he\nacted willfully. Crombie either knew the statements he\nprovided to the NFA misrepresented the value of the JDC-\nmanaged accounts, or he provided those statements to the\nNFA “with a reckless disregard for whether they were false.”\nTarallo, 380 F.3d at 1188.\n\n During the NFA’s investigation, Crombie also\nmisrepresented the nature of a $200,000 payment Crombie\nmade to Paul Porteous in May 2009. Crombie told the NFA\nthat he had paid Porteous $200,000 in exchange for\n\f12 U.S. CFTC V. CROMBIE\n\nPorteous’s share in JDC. In fact, as Crombie later admitted\nduring this litigation, Crombie owed Porteous $1.15 million,\nand the $200,000 payment was made in partial repayment of\nthat debt. Again, these facts make clear that Crombie either\n“made statements [to the NFA] that he knew at the time were\nfalse, or else made them with a reckless disregard for\nwhether they were false.” Id.\n\n Finally, Crombie told the NFA during its investigation\nthat Steven Lamar had paid JDC $300,000 in exchange for\ncertain financial advice JDC provided to Lamar’s hedge\nfund. In his statement, Crombie told the NFA that the\n$300,000 payment was made in two separate transfers, one\nof which was a $50,000 transfer made on May 4, 2009. Later\nin the investigation, however, Crombie told the NFA that the\n$50,000 payment made on May 4, 2009, was an investment\nin JDC. Eventually, during litigation, he admitted that the\n$50,000 payment was in fact a loan made to JDC by Lamar’s\nhedge fund.\n\n Crombie argues that, because he used the terms “loan”\nand “investment” interchangeably, he was not acting\nwillfully when he made these false representations. But\nCrombie did not initially describe the $50,000 payment as\neither an investment or a loan; he first described the payment\nas a fee for services rendered. This description was\nundoubtedly false, and Crombie had to know the description\nwas false. There is thus no genuine issue as to whether\nCrombie acted willfully when he misrepresented the nature\nof the $50,000 payment to the NFA.\n\n B\n\n The district court was also correct to grant summary\njudgment to the Commission on its claims that Crombie\nmisled investors in violation of 7 U.S.C. §§ 6b(a)(1)(A)–(B)\n\f U.S. CFTC V. CROMBIE 13\n\nand 6o(1), two provisions of the Act that prohibit certain\nfraudulent conduct in connection with the trading of\ncommodities and futures.\n\n The basic facts underlying these claims are as follows:\nParon’s marketing materials stated that Paron managed\n$35 million, including one account with $20 million. But\nParon in fact managed only $15 million. The largest\nmanaged account contained only $6 million. The marketing\nmaterials also misrepresented certain performance figures\nfor the JDC-managed accounts. For example, Paron\nrepresented in the marketing materials that JDC-managed\naccounts generated returns of 38.6 percent in 2008; but as\ndiscussed above, those accounts in fact had a steady balance\nof $40 starting in late 2007; had no trades in 2008; and closed\nin February 2008.\n\n Crombie does not dispute these facts. He argues only\nthat there is a genuine dispute of material fact regarding\nwhether Crombie possessed the mental state necessary to\nviolate § 6b(a)(1)(A)–(B).\n\n Section 6b(a)(1)(A)–(B) makes it unlawful for any\nperson “to cheat or defraud,” or “willfully to make or cause\nto be made to [another] person any false report or statement”\nin connection with certain commodity-related transactions.\nA showing of scienter is necessary to establish a violation\n§ 6b(a)(1)(A)–(B); in other words, the defendant “must have\nknown that he was cheating” or “known the report was\nfalse,” as the case may be. CFTC v. Savage, 611 F.2d 270,\n283 (9th Cir. 1979). Savage further held that “[k]nowledge\n. . . exists when one acts in careless disregard of whether his\nacts amount to cheating, filing false reports, etc.” Id.\n\n Crombie maintains that he did not know he was cheating,\nunder subsection (A), or making any material false\n\f14 U.S. CFTC V. CROMBIE\n\nstatements, under subsection (B), because he reasonably\nrelied on reports created by third-party accountants that\npurportedly verified the 38.6 percent figure, as well as the\nother representations regarding the performance of the JDC-\nmanaged accounts. This contention fails.\n\n First, the third-party accountants’ reports did not provide\nany basis for Crombie to believe that Paron in fact managed\n$35 million in total assets, or to believe that Paron managed\na $20 million account. So Crombie knew that he was making\nfalse statements when he misrepresented the amount of\nassets managed by Paron. See id.\n\n Second, Crombie testified that he was aware of the day-\nto-day performance of the accounts JDC managed. Crombie\nwas thus aware that the accounts JDC managed consistently\nhad $40 in assets while open in 2008, and closed completely\nin February of that year. Even though Crombie received\nthird-party reports that purported to verify the 38.6 percent\nperformance figure, he could not have legitimately believed\nthat the accounts JDC managed had generated 38.6 percent\nreturns, given what he knew about those accounts. Thus, he\nacted with the requisite scienter—he knew the performance\nfigures he was representing were false. See id.\n\n Crombie similarly argues that there is a genuine dispute\nof material fact regarding whether Crombie possessed the\nmental state necessary to violate § 6o(1). Section 6o(1), like\n§ 6b(a)(1)(A)–(B), makes unlawful fraudulent conduct\ncommitted in connection with commodity transactions. But\nunlike § 6b(a)(1), § 6o covers only a limited set of regulated\npeople: “commodity trading advisor[s]”, “commodity pool\noperator[s]”, and their “associated person[s].” For this\nlimited class of people covered by § 6o(1), the Commission\nneed only show that “the violator . . . acted intentionally. . . .\nIf the trading advisor or commodity pool operator intended\n\f U.S. CFTC V. CROMBIE 15\n\nto do what was done and its consequence is to defraud the\nclient or prospective client[,] that is enough . . . .” 8 Savage,\n611 F.2d at 285. All of the evidence suggests Crombie acted\nintentionally when providing the false and misleading\nmarketing materials to potential clients; no evidence\nsuggests otherwise. Thus, there is no genuine dispute as to\nwhether he acted intentionally.\n\n III\n\n Crombie also challenges the propriety of the remedies\nimposed by the district court. We review the remedies\nissued by a district court for an abuse of discretion. See\nGrosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154,\n1163 (9th Cir. 2001).\n\n A\n\n The pertinent remedy provision, 7 U.S.C. § 13a-1(a),\nprovided at the time of Crombie’s statutory violations that\n“the Commission may bring an action . . . to enjoin [a\nviolation of the Act], or to enforce compliance with [the\nAct], or any rule, regulation or order thereunder.” Section\n13a-1 also provided that the Commission could seek civil\npenalties for violations of the Act. 7 U.S.C. § 13a-1(d); see\n 8\n Relying on the Seventh Circuit’s decision in Commodity Trend\nService, Inc. v. CFTC, 233 F.3d 981, 993–94 (7th Cir. 2000), Crombie\nargues that § 6o(1) requires a showing that the defendant acted with\nnegligence. See id.; see also Messer v. E.F. Hutton & Co., 847 F.2d 673,\n677–79 (11th Cir. 1988) (holding that § 6o(1)(A) includes a scienter\nrequirement). This argument is foreclosed by Savage. 611 F.2d at 285.\nMoreover, even if § 6o(1) required a showing of negligence or scienter,\nit would nonetheless be appropriate to grant summary judgment to the\nCommission for the same reasons it is appropriate to grant summary\njudgment under § 6b(a)(1)(A)–(B).\n\f16 U.S. CFTC V. CROMBIE\n\nalso 17 C.F.R. § 143.8(b). Although § 13a-1 did not\nexplicitly so state, both this circuit and other circuits have\nlong held that district courts have the authority to order\ntraditional equitable relief in actions brought under § 13a-1,\nas part of their authority to enforce compliance with the Act. 9\nSee CFTC v. Co Petro Mktg. Grp., Inc., 680 F.2d 573, 583\n(9th Cir. 1982); CFTC v. Hunt, 591 F.2d 1211, 1222–23 (7th\nCir. 1979); see also CFTC v. Wilshire Inv. Mgmt. Corp.,\n531 F.3d 1339, 1344 (11th Cir. 2008) (citing cases). More\nspecifically, Co Petro Marketing Group held that the district\ncourt could under § 13a-1 properly order an accounting of\nprofits and disgorgement of those profits. 680 F.2d at 583.\nAn accounting and disgorgement of profits is a classic form\nof restitutionary relief. Restatement (3d) of Restitution and\nUnjust Enrichment § 51 cmt. e (2011) [hereinafter\nRestatement of Restitution]; see also id. §§ 3, 51(4); Wilshire\nInv. Mgmt., 531 F.3d at 1344 (holding that an order of\nrestitution was authorized under § 13a-1).\n\n Crombie does not challenge whether the amount of the\nrestitution order rests on an accurate calculation of losses\nsuffered by Paron’s investors. Instead, he maintains that the\nentire methodology was incorrect, because restitution “does\nnot take into consideration the plaintiff’s losses, but only\nfocuses on the defendant’s unjust enrichment.” Wilshire,\n531 F.3d at 1345.\n\n\n 9\n In 2011, Congress amended 7 U.S.C. § 13a-1 as part of the Dodd-\nFrank Act to state explicitly that district courts in actions brought under\n§ 13a-1 could “impose . . . equitable remedies,” including “restitution to\npersons who have sustained losses proximately caused” by violations of\nthe Act. Dodd-Frank Wall Street Reform and Consumer Protection Act,\nPub. L. 111–203, title VII, § 744, 124 Stat. 1376, 1735 (2011). Neither\nparty contends that the amended version of the statute applies here, so\nwe do not consider whether it does.\n\f U.S. CFTC V. CROMBIE 17\n\n Crombie’s view of the limits of a restitutionary remedy\nis too narrow. Restitution is a remedy designed to prevent a\ndefendant from unjustly enriching himself at another’s\nexpense. Restatement of Restitution §§ 1, 3, 49. Where a\ndefendant has profited from his wrongful actions, restitution\ncan take the form of an order requiring the defendant to\ndisgorge those wrongfully gotten profits and transfer them\nto the victims. Id. § 51(4); see also Co Petro Mktg. Grp.,\n680 F.2d at 583.\n\n But there are instances in which a defendant does not\nultimately reap any profits from his wrongful conduct, and\nothers where even though the defendant obtained some\nprofit, the “loss suffered by the victim is greater than the\nunjust benefit received by the defendant . . . .” FTC v. Figgie\nInt’l., Inc., 994 F.2d 595, 606 (9th Cir. 1993) (quotation\nomitted); see also FTC v. Stefanchick, 559 F.3d 924, 931\n(9th Cir. 2009). 10 In these circumstances, restitution can be\ncoupled with the equitable remedy of rescission, which\nundoes a faulty transaction. See Figgie Int’l., 994 F.2d at\n606–07; 1 Dobbs, Law of Remedies § 4.3(6) (2d ed. 1993);\nRestatement of Restitution § 54; see also Commerce Planet,\n815 F.3d at 603.\n\n Here, coupling these two remedies was appropriate.\nCustomers who entered into agreements with Paron did so\nbecause of fraudulent misrepresentations by Crombie, such\n\n 10\n The Federal Trade Commission Act, like the Commodity\nExchange Act, grants courts broad authority to prevent fraudulent\nconduct violating that act. See FTC v. Commerce Planet, Inc., 815 F.3d\n593, 598 (9th Cir. 2016); Figgie Int’l., 994 F.2d at 605. Cases\ninterpreting the Federal Trade Commission Act rely on traditional\nprinciples of equity that apply across statutory regimes, so their\nreasoning is persuasive here.\n\f18 U.S. CFTC V. CROMBIE\n\nas the misrepresentations as to the amount of assets under\nmanagement and the past performance of funds managed by\nCrombie. See pp. 12–15, supra. Based on these facts,\nrescission of the contracts entered into as a result of fraud\nwas an appropriate equitable remedy. Concomitantly, an\norder that Crombie pay back to the investors the money that\nthey invested in Paron as part of the rescinded transaction\nless the amount already returned by Paron was proper. 11 The\namount Parons’ clients invested with Paron less the amount\nreturned by Paron is equivalent to the amount Paron’s clients\nlost because they invested with Paron.\n\n The district court did not spell out this reasoning. But\nthe Commission submitted a declaration explaining how the\nrestitutionary amount adopted by the district court was\narrived upon. As noted, Crombie only challenges the legal\npropriety of the Commission’s victim-based theory of\nrestitution, not the calculation of the restitution amount if the\napproach taken is permissible. As we have concluded that\nthe method of determining restitution used by the district\ncourt was legally permissible, to require a further\nexplanation by the district court would be an empty\nformality. Cf. Traxler v. Multnomah Cty., 596 F.3d 1007,\n1016 (9th Cir. 2010) (remand was required where there was\nno reasoned decision and “[t]he record does not permit us to\ninfer a rationale”).\n\n\n\n\n 11\n To effectuate the order of restitution, the district court appointed\nthe NFA as a monitor with the power to “collect restitution payments\nfrom Crombie” and to “determine the manner of distribution of such\nfunds in an equitable fashion to Crombie’s and/or Paron’s customers or\nclients identified by the [Commission].”\n\f U.S. CFTC V. CROMBIE 19\n\n B\n\n Although we affirm the restitution order, we vacate in\npart the district court’s order issuing a permanent injunction\nagainst Crombie. To evaluate a district court’s decision\nunder the abuse of discretion standard, “we must be able to\nascertain how the district court exercised its discretion.” Id.\nat 1015. Where the connection between the terms of an\ninjunction and the violations sought to be remedied is\napparent, we are usually able to ascertain the basis for the\ndistrict court’s restrictions sufficiently that no further\nexplanation is needed for purpose of appellate review. When\nthat evident link is missing, however, “we must remand to\nthat court to reconsider its decision and to set forth its\nreasons for whatever decision it reaches, so that we can\nproperly exercise our powers of review.” Id. (quoting Blue\nCross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr.,\nInc., 490 F.3d 718, 724–25 (9th Cir. 2007)).\n\n Here, the district court adopted the Commission’s\nproposed injunction in toto and provided no specific\nexplanation as to why it adopted any of the suggested\nprovisions. Much of the Permanent Injunction restrains\nCrombie from violating various provisions of the Act. Other\nprovisions forbid him from engaging in trading in covered\nfinancial products and registering to do so. As to all such\nprovisions—§§ 4 and 5(a), (d), (e), (f), and (g) of the\nPermanent Injunction—the connection between the\nviolations found and the prohibitions are sufficiently self-\nevident that we can—and do—conclude that the district\ncourt’s inclusion of those future restraints on Crombie was\nnot an abuse of discretion.\n\n As to two other sections of the Permanent Injunction,\nhowever, the path from the violations found to the\nprohibitions ordered is not as clear. Sections 5(b), and (c) of\n\f20 U.S. CFTC V. CROMBIE\n\nthe Permanent Injunction forbid Crombie from engaging in\ncovered transactions “for his own personal account or for\nany account in which he has a direct or indirect interest,” or\nfrom having any such trades made on his behalf. As we\ncannot readily discern how these prohibitions are connected\nto preventing future violations similar to those that Crombie\nhas committed, we cannot conduct meaningful abuse of\ndiscretion review without further explanation. We therefore\nremand for further explanation as to those parts of the\nPermanent Injunction.\n\n AFFIRMED IN PART, VACATED IN PART, AND\nREMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363974/", "author_raw": "BERZON, Circuit Judge:"}]}	RONALD M GOULD	MARSHA S BERZON	FREDERIC BLOCK	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586721/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,112		Naaaom v. Comcast Corporation	2019-02-04	16-56479	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MARY M. SCHROEDER, MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges.", "parties": "", "opinions": [{"author": "panel rehearing. Judge M. Smith and Judge Nguyen vote to", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nNATIONAL ASSOCIATION OF AFRICAN No. 16-56479\nAMERICAN-OWNED MEDIA, a\nCalifornia limited liability company; D.C. No.\nENTERTAINMENT STUDIOS 2:15-cv-01239-\nNETWORKS, INC., a California TJH-MAN\ncorporation,\n Plaintiffs-Appellants,\n ORDER\n v.\n\nCOMCAST CORPORATION, a\nPennsylvania corporation,\n Defendant-Appellee.\n\n\n\n Filed February 4, 2019\n\nBefore: MARY M. SCHROEDER, MILAN D. SMITH,\n JR., and JACQUELINE H. NGUYEN, Circuit Judges.\n\f2 NAAAOM V. COMCAST\n\n ORDER\n\n The panel unanimously votes to deny the petition for\npanel rehearing. Judge M. Smith and Judge Nguyen vote to\ndeny the petition for rehearing en banc, and Judge Schroeder\nso recommends. The full court has been advised of the\npetition for rehearing en banc, and no judge of the court has\nrequested a vote on it. Fed. R. App. P. 35. The petition for\npanel rehearing and the petition for rehearing en banc are\nDENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364365/", "author_raw": "panel rehearing. Judge M. Smith and Judge Nguyen vote to"}]}	MARY M SCHROEDER	MILAN D SMITH JR	JACQUELINE H NGUYEN	1	{"MARY M SCHROEDER": ", Circuit", "MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587112/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,113		Naaaom v. Charter Communications, Inc.	2019-02-04	17-55723	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MARY M. SCHROEDER, MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nNATIONAL ASSOCIATION OF AFRICAN No. 17-55723\nAMERICAN-OWNED MEDIA, a\nCalifornia Limited Liability D.C. No.\nCompany; ENTERTAINMENT STUDIOS 2:16-cv-00609-\nNETWORKS, INC., a California GW-FFM\ncorporation,\n Plaintiffs-Appellees,\n ORDER AND\n v. OPINION\n\nCHARTER COMMUNICATIONS, INC., a\nDelaware corporation,\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Central District of California\n George H. Wu, District Judge, Presiding\n\n Argued and Submitted October 9, 2018\n Pasadena, California\n\n Filed February 4, 2019\n\nBefore: MARY M. SCHROEDER, MILAN D. SMITH,\n JR., and JACQUELINE H. NGUYEN, Circuit Judges.\n\n Opinion by Judge Milan D. Smith, Jr.\n\f2 NAAAOM V. CHARTER COMMUNICATIONS\n\n SUMMARY \n\n\n Civil Rights\n\n The panel filed (1) an order withdrawing its prior opinion\nand denying, on behalf of the court, a petition for rehearing\nen banc, and (2) a superseding opinion affirming the district\ncourt’s denial of a cable television-distribution company’s\nmotion to dismiss a claim that its refusal to enter into a\ncarriage contract with an African American-owned operator\nof television networks was racially motivated, and in\nviolation of 42 U.S.C. § 1981.\n\n In the superseding opinion, reconsidering the court’s\napproach to the causation standard for § 1981 claims under\nMetoyer v. Chassman, 504 F.3d 919 (9th Cir. 2007),\nfollowing the Supreme Court’s decisions in Gross v. FBL\nFin. Servs., Inc., 557 U.S. 167 (2009), and Univ. of Tex. Sw.\nMed. Ctr. v. Nassar, 570 U.S. 338 (2013), the panel held that\na plaintiff need not plead that racial discrimination was the\nbut-for cause of a defendant’s conduct, but only that racial\ndiscrimination was a factor in the decision not to contract\nsuch that the plaintiff was denied the same right as a white\ncitizen. The panel concluded that Gross and Nassar\nundercut Metoyer’s approach of borrowing the causation\nstandard of Title VII’s discrimination provision. The panel\ninstead looked to the text of § 1981, and it held that mixed-\nmotive claims are cognizable under § 1981.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f NAAAOM V. CHARTER COMMUNICATIONS 3\n\n The panel held that the plaintiffs’ allegations regarding\nthe defendant’s treatment of the African American-owned\noperator, and its differing treatment of white-owned\ncompanies, were sufficient to state a viable claim pursuant\nto § 1981.\n\n The panel also held that plaintiffs’ § 1981 claim was not\nbarred by the First Amendment. The panel concluded that\nthe fact that cable operators engage in expressive conduct\nwhen they select which networks to carry did not\nautomatically require the application of strict scrutiny. The\npanel concluded that at most intermediate scrutiny applied,\nand § 1981 would satisfy intermediate scrutiny because it\nwas a content-neutral statute and was narrowly tailored to\nserve a significant government interest in preventing racial\ndiscrimination.\n\n The panel remanded the case for further proceedings.\n\n\n COUNSEL\n\nPatrick Francis Philbin (argued), Devin S. Anderson, Jeffrey\nS. Powell, and Paul D. Clement, Kirkland & Ellis LLP,\nWashington, D.C.; Mark C. Holscher, Kirkland & Ellis LLP,\nLos Angeles, California; for Defendant-Appellant.\n\nErwin Chemerinsky (argued), Boalt Hall, University of\nCalifornia, Berkeley, California; David W. Schecter, J. Mira\nHashmall, Brian A. Procel, and Louis R. Miller, Miller\nBarondess LLP, Los Angeles, California; for Plaintiffs-\nAppellees.\n\nJohn Bergmayer, Public Knowledge, Washington, D.C., for\nAmicus Curiae Public Knowledge.\n\f4 NAAAOM V. CHARTER COMMUNICATIONS\n\nGregory G. Garre and Charles S. Dameron, Latham &\nWatkins LLP, Washington, D.C.; Daryl Joseffer and\nJonathan Urick, U.S. Chamber Litigation Center,\nWashington, D.C.; for Amicus Curiae Chamber of\nCommerce of the United States of America.\n\n\n\n ORDER\n\n Defendant-Appellant’s petition for panel rehearing is\nGRANTED. The opinion filed November 19, 2018, and\nreported at 908 F.3d 1190, is hereby withdrawn. A\nsuperseding opinion will be filed concurrently with this\norder.\n\n Judge M. Smith and Judge Nguyen vote to deny the\npetition for rehearing en banc, and Judge Schroeder so\nrecommends. The full court has been advised of the petition\nfor rehearing en banc, and no judge of the court has\nrequested a vote on it. Fed. R. App. P. 35. The petition for\nrehearing en banc is DENIED. No further petitions for panel\nrehearing or rehearing en banc will be entertained.\n\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n Plaintiff-Appellee Entertainment Studios Networks, Inc.\n(Entertainment Studios), an African American-owned\noperator of television networks, sought to secure a carriage\ncontract from Defendant-Appellant Charter Communications,\nInc. (Charter). These efforts were unsuccessful, and\nEntertainment Studios, along with Plaintiff-Appellee\n\f NAAAOM V. CHARTER COMMUNICATIONS 5\n\nNational Association of African American-Owned Media\n(NAAAOM, and together with Entertainment Studios,\nPlaintiffs), claimed that Charter’s refusal to enter into a\ncarriage contract was racially motivated, and in violation of\n42 U.S.C. § 1981. The district court, concluding that\nPlaintiffs’ complaint sufficiently pleaded a § 1981 claim and\nthat the First Amendment did not bar such an action, denied\nCharter’s motion to dismiss. The court then certified that\norder for interlocutory appeal. We have jurisdiction\npursuant to 28 U.S.C. § 1292(b), and we affirm.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n Entertainment Studios is a full-service television and\nmotion picture company owned by Byron Allen, an African-\nAmerican actor, comedian, and entrepreneur. It serves as\nboth a producer of television series and an operator of\ntelevision networks, and currently operates seven channels\nand distributes thousands of hours of programming.\n\n Entertainment Studios relies on cable operators like\nCharter for “carriage contracts”; these operators, which\nrange from local cable companies to nationwide enterprises,\ncarry and distribute channels and programming to their\ntelevision subscribers. Although Entertainment Studios\nmanaged to secure carriage contracts with more than\n50 operators—including prominent distributors like\nVerizon, AT&T, and DirecTV—it was unable to reach a\nsimilar agreement with Charter, the third-largest cable\ntelevision-distribution company in the United States, despite\nefforts that began in 2011.\n\n From 2011 to 2016, Charter’s senior vice president of\nprogramming, Allan Singer, declined to meet with\n\f6 NAAAOM V. CHARTER COMMUNICATIONS\n\nEntertainment Studios representatives or consider its\nchannels for carriage. Plaintiffs alleged that, instead of\nengaging in a meaningful discussion regarding a potential\ncarriage contract, Singer and Charter repeatedly refused,\nrescheduled, and postponed meetings, encouraging\nEntertainment Studios to exercise patience and proffering\ndisingenuous explanations for its refusal to contract.\nAlthough Singer stated that Charter was not launching any\nnew channels and that bandwidth and operational demands\nprecluded carriage opportunities, Plaintiffs claimed that\nCharter nonetheless negotiated with other, white-owned\nnetworks during the same period, and also secured carriage\nagreements with The Walt Disney Company and Time\nWarner Cable Sports. Charter allegedly communicated that\nit did not have faith in Entertainment Studios’ “tracking\nmodel,” despite contracting with other white-owned media\ncompanies that used the same tracking model. Plaintiffs also\nasserted that Singer blocked a meeting between\nEntertainment Studios and Charter CEO Tom Rutledge\nbecause the latter “does not meet with programmers,”\ndespite the fact that Rutledge regularly met with the CEOs\nof white-owned programmers, such as Viacom’s Philippe\nDauman. Singer was allegedly steadfast in his opposition to\nEntertainment Studios, saying, “Even if you get support\nfrom management in the field, I will not approve the launch\nof your network.”\n\n Plaintiffs claimed that they finally managed to secure a\nmeeting with Singer in July 2015. However, during the\nmeeting at Charter’s headquarters in Stamford, Connecticut,\nSinger once again made clear that Entertainment Studios\nwould not receive a carriage contract, citing a series of\nallegedly insincere explanations for this decision. For\nexample, Singer informed Entertainment Studios that he\nwanted to wait and “see what AT&T does,” despite the fact\n\f NAAAOM V. CHARTER COMMUNICATIONS 7\n\nthat AT&T already carried one of Entertainment Studios’\nnetworks. Charter also mentioned its purported lack of\nbandwidth, even though at that time, it expanded the\ndistribution of two lesser-known, white-owned channels into\nmajor media markets: RFD-TV, a network focused on rural\nand Western lifestyles, and CHILLER, a horror channel.\n\n In addition to recounting Entertainment Studios’ failed\nnegotiations with Charter, Plaintiffs’ amended complaint\nalso included direct evidence of racial bias. In one instance,\nSinger allegedly approached an African-American protest\ngroup outside Charter’s headquarters, told them “to get off\nof welfare,” and accused them of looking for a “handout.”\nPlaintiffs asserted that, after informing Charter of these\nallegations, it announced that Singer was leaving the\ncompany. In another alleged instance, Entertainment\nStudios’ owner, Allen, attempted to talk with Charter’s\nCEO, Rutledge, at an industry event; Rutledge refused to\nengage, referring to Allen as “Boy” and telling Allen that he\nneeded to change his behavior. Plaintiffs suggested that\nthese incidents were illustrative of Charter’s institutional\nracism, noting also that the cable operator had historically\nrefused to carry African American-owned channels and,\nprior to its merger with Time Warner Cable, had a board of\ndirectors composed only of white men. The amended\ncomplaint further alleged that Charter’s recently pronounced\ncommitments to diversity were merely illusory efforts to\nplacate the Federal Communications Commission (FCC).\n\nII. Procedural Background\n\n Plaintiffs initiated this action on January 27, 2016,\nasserting both a claim against Charter under § 1981 and a\nclaim against the FCC under the due process clause of the\n\f8 NAAAOM V. CHARTER COMMUNICATIONS\n\nFifth Amendment. 1 After learning of the derogatory racial\ncomments allegedly made by Singer and Rutledge, Plaintiffs\nsought leave to file a first amended complaint (FAC), which\nthe district court granted. The FAC alleged one claim\nagainst Charter for racial discrimination in contracting in\nviolation of § 1981.\n\n Charter moved to dismiss the FAC, arguing that it failed\nto plead that racial animus was the but-for cause of Charter’s\nconduct and that the First Amendment barred a § 1981 claim\nbased on a cable operator’s editorial discretion. The district\ncourt denied the motion. It determined that, under Metoyer\nv. Chassman, 504 F.3d 919 (9th Cir. 2007), Plaintiffs needed\nonly to plead that racism was a motivating factor in Charter’s\ndecision, not the but-for cause—a requirement, the court\nconcluded, that Plaintiffs satisfied. Addressing Charter’s\ncontention that Metoyer was no longer good law following\ntwo subsequent Supreme Court decisions, the district court\nconcluded that “if Metoyer is no longer good law on this\npoint, [then] the Ninth Circuit [] should announce that\nconclusion.” As for Charter’s First Amendment challenge,\nthe district court allowed that the cable operator’s “ultimate\ncarriage/programming activity is entitled to some measure\nof First Amendment protection,” but declined to apply strict\nscrutiny and bar the § 1981 claim.\n\n Subsequently, Charter moved for certification of the\ndistrict court’s order under 28 U.S.C. § 1292(b), which the\ndistrict court granted. This appeal followed.\n\n\n\n\n 1\n Plaintiffs voluntarily dismissed their claim against the FCC before\nfiling their first amended complaint.\n\f NAAAOM V. CHARTER COMMUNICATIONS 9\n\n STANDARD OF REVIEW AND JURISDICTION\n\n “We review de novo a district court order denying a\nmotion to dismiss pursuant to Federal Rule of Civil\nProcedure 12(b)(6).” Fortyune v. City of Lomita, 766 F.3d\n1098, 1101 (9th Cir. 2014). We have jurisdiction pursuant\nto 28 U.S.C. § 1292(b). 2\n\n ANALYSIS\n\n “Section 1981 offers relief when racial discrimination\nblocks the creation of a contractual relationship.” Domino’s\nPizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006). The\nstatute provides that “[a]ll persons . . . shall have the same\nright in every State and Territory to make and enforce\ncontracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C.\n§ 1981(a). It further defines “make and enforce contracts”\nas including “the making, performance, modification, and\ntermination of contracts, and the enjoyment of all benefits,\nprivileges, terms, and conditions of the contractual\nrelationship.” Id. § 1981(b). The Supreme Court has\nemphasized that § 1981 reaches both public and “purely\nprivate acts of racial discrimination.” Runyon v. McCrary,\n\n 2\n “A non-final order may be certified for interlocutory appeal where\nit ‘involves a controlling question of law as to which there is substantial\nground for difference of opinion’ and where ‘an immediate appeal from\nthe order may materially advance the ultimate termination of the\nlitigation.’” Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 687–88 (9th\nCir. 2011) (quoting 28 U.S.C. § 1292(b)). “Although we defer to the\nruling of the motions panel granting an order for interlocutory appeal,\n‘we have an independent duty to confirm that our jurisdiction is proper.’”\nId. at 688 (quoting Kuehner v. Dickinson & Co., 84 F.3d 316, 318–19\n(9th Cir. 1996)). Here, we are satisfied that the district court and the\nmotions panel of this court correctly concluded that certification under\n§ 1292(b) was appropriate.\n\f10 NAAAOM V. CHARTER COMMUNICATIONS\n\n427 U.S. 160, 170 (1976); see also 42 U.S.C. § 1981(c)\n(“The rights protected by this section are protected against\nimpairment by nongovernmental discrimination and\nimpairment under color of State law.”). However, it\n“reaches only purposeful discrimination.” Gen. Bldg.\nContractors Ass’n v. Pennsylvania, 458 U.S. 375, 389\n(1982) (emphasis added). 3\n\n Charter advances three primary arguments on appeal: the\ndistrict court applied the wrong causation standard to\nPlaintiffs’ § 1981 claim; Plaintiffs’ FAC failed to plead a\nplausible claim; and the First Amendment bars a § 1981\nclaim premised on a cable operator’s editorial decisions. We\nwill consider each of these arguments in turn.\n\nI. Causation Standard\n\n Charter argues that the Supreme Court’s decisions in two\ndiscrimination cases require us to apply a but-for causation\nstandard to § 1981 claims. Although we agree that these\nprecedents necessitate reconsideration of our § 1981\napproach, we disagree that the but-for causation standard\nshould be applied.\n\n\n\n\n 3\n Although the Supreme Court has not squarely decided whether a\ncorporation may bring suit under § 1981, see Domino’s Pizza, 546 U.S.\nat 473 n.1, we have held that a corporation may do so when it “has\nacquired an imputed racial identity.” Thinket Ink Info. Res., Inc. v. Sun\nMicrosystems, Inc., 368 F.3d 1053, 1058–59 (9th Cir. 2004). Thus, as a\n“100% African American-owned” company that is a “bona fide Minority\nBusiness Enterprise,” Entertainment Studios can bring a § 1981 claim,\neven though it is a corporation and not an individual.\n\f NAAAOM V. CHARTER COMMUNICATIONS 11\n\n A. Metoyer and the Motivating Factor Standard\n\n In the past, we have held that “the same legal principles\nas those applicable in a Title VII disparate treatment case”\ngovern a § 1981 claim. Metoyer, 504 F.3d at 930 (quoting\nFonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840,\n850 (9th Cir. 2004)). “In a Title VII discrimination case,\neven an employer who can successfully prove a mixed-\nmotive defense, i.e., he would have made the same decision\nregarding a particular person without taking race or gender\ninto account, does not escape liability.” Id. at 931; see also\n42 U.S.C. § 2000e-2(m) (providing that a plaintiff can\nprevail in a Title VII disparate treatment case by showing\n“that race, color, religion, sex, or national origin was a\nmotivating factor for any employment practice, even though\nother factors also motivated the practice”). Accordingly, we\npreviously ruled that a § 1981 defendant may be held liable\neven if it had a legitimate reason for its refusal to contract,\nso long as racial discrimination was a motivating factor in\nthat decision.\n\n B. Gross and Nassar\n\n Charter correctly notes that two Supreme Court\ndecisions cast doubt on the propriety of our application of\nthe Title VII standard to § 1981 claims. In these two cases,\nthe Supreme Court departed from application of the Title VII\nmotivating factor standard, and instead endorsed a but-for\ncausation requirement as applied to two federal statutes: the\nAge Discrimination in Employment Act (ADEA), Gross v.\nFBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009), and\nretaliation claims brought under Title VII, Univ. of Tex. Sw.\nMed. Ctr. v. Nassar, 570 U.S. 338, 362–63 (2013). In Gross,\nthe Court admonished that “[w]hen conducting statutory\ninterpretation, we ‘must be careful not to apply rules\napplicable under one statute to a different statute without\n\f12 NAAAOM V. CHARTER COMMUNICATIONS\n\ncareful and critical examination.’” Gross, 557 U.S. at 174\n(quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389,\n393 (2008)). That examination did not center on the shared\nobjectives of the statute at issue there and Title VII’s\nantidiscrimination provision—the approach that this court\nemployed in Metoyer and its antecedents with regard to\n§ 1981—but instead focused on the statute’s text and\nhistory:\n\n Unlike Title VII, the ADEA’s text does not\n provide that a plaintiff may establish\n discrimination by showing that age was\n simply a motivating factor. Moreover,\n Congress neglected to add such a provision to\n the ADEA when it amended Title VII . . . .\n\n Our inquiry therefore must focus on the text\n of the ADEA to decide whether it authorizes\n a mixed-motives age discrimination claim.\n\nId. at 174–75. In Nassar, the Court expanded upon this\ntextual analysis, explaining that\n\n [i]n the usual course, [the causation] standard\n requires the plaintiff to show “that the harm\n would not have occurred” in the absence of—\n that is, but for—the defendant’s conduct. . . .\n This, then, is the background against which\n Congress legislated in enacting Title VII, and\n these are the default rules it is presumed to\n have incorporated, absent an indication to the\n contrary in the statute itself.\n\n570 U.S. at 346–47.\n\f NAAAOM V. CHARTER COMMUNICATIONS 13\n\n In both cases, after analyzing the relevant statutory texts,\nthe Court endorsed the use of a default, but-for causation\nstandard in the application of the statutes being construed—\na standard from which courts may depart only when the text\nof a statute permits. See Gross, 557 U.S. at 175 n.2 (“[T]he\ntextual differences between Title VII and the ADEA []\nprevent us from applying [the motivating factor standard] to\nfederal age discrimination claims.”); Nassar, 570 U.S. at 352\n(“Given the lack of any meaningful textual difference\nbetween the text in this statute and the one in Gross, the\nproper conclusion here, as in Gross, is that Title VII\nretaliation claims require proof that the desire to retaliate\nwas the but-for cause of the challenged employment\naction.”). 4\n\n We conclude that Metoyer does not emerge from Gross\nand Nassar unscathed. We premised our opinion in Metoyer\non a determination that “an ‘[a]nalysis of an employment\ndiscrimination claim under § 1981 follows the same legal\nprinciples as those applicable in a Title VII disparate\ntreatment case.’” Metoyer, 504 F.3d at 934 (alteration in\noriginal) (quoting Fonseca, 374 F.3d at 850). That opinion\n\n 4\n Plaintiffs argue that Gross and Nassar have no bearing here\nbecause of the textual differences between the ADEA, the Title VII\nretaliation provision, and § 1981. We disagree. Although it is true that\nthe use of the word “because”—which does not appear in § 1981—drove\nthe Court’s results in those cases, see Gross, 557 U.S. at 176–78; Nassar,\n570 U.S. at 352, the decisions do not hold that the preceding inquiry only\noccurs in cases where a statute features the word “because” or other\nsimilar language. Indeed, in Nassar, the Court cautioned against reading\nGross in too narrow a manner. Nassar, 570 U.S. at 351 (“In Gross, the\nCourt was careful to restrict its analysis to the statute before it and\nwithhold judgment on the proper resolution of a case, such as this, which\narose under Title VII rather than the ADEA. But the particular confines\nof Gross do not deprive it of all persuasive force.”).\n\f14 NAAAOM V. CHARTER COMMUNICATIONS\n\nfollowed a line of cases in which this court applied Title\nVII’s causation standard to § 1981 cases because both\nstatutes sought to combat intentional discrimination. 5 This\napproach is incompatible with Gross, which suggests that,\nrather than borrowing the causation standard from Title\nVII’s disparate treatment provision and applying it to § 1981\nbecause both are antidiscrimination statutes, we must instead\nfocus on the text of § 1981 to see if it permits a mixed-motive\nclaim. See Gross, 557 U.S. at 174–75. 6\n\n C. Departing from Metoyer\n\n Although not addressed by the parties, a departure from\nMetoyer is permissible here under our opinion in Miller v.\nGammie, which held that a higher court ruling is controlling\nwhen it has “undercut the theory or reasoning underlying the\nprior circuit precedent in such a way that the cases are clearly\nirreconcilable.” 335 F.3d 889, 900 (9th Cir. 2003) (en banc).\n\n 5\n See, e.g., Fonseca, 374 F.3d at 850 (“Analysis of an employment\ndiscrimination claim under § 1981 follows the same legal principles as\nthose applicable in a Title VII disparate treatment case. Both require\nproof of discriminatory treatment and the same set of facts can give rise\nto both claims.” (citation omitted)); Manatt v. Bank of Am., NA, 339 F.3d\n792, 797–98 (9th Cir. 2003) (“We also recognize that those legal\nprinciples guiding a court in a Title VII dispute apply with equal force in\na § 1981 action.”); EEOC v. Inland Marine Indus., 729 F.2d 1229, 1233\nn.7 (9th Cir. 1984) (“A plaintiff must meet the same standards in proving\na § 1981 claim that he must meet in establishing a disparate treatment\nclaim under Title VII; that is, he must show discriminatory intent.”\n(citing Gen. Bldg. Contractors Ass’n, 458 U.S. at 391)).\n\n 6\n As another circuit court has concluded, “No matter the shared goals\nand methods of two laws, [Gross] explains that we should not apply the\nsubstantive causation standards of one anti-discrimination statute to\nother anti-discrimination statutes when Congress uses distinct language\nto describe the two standards.” Lewis v. Humboldt Acquisition Corp.,\n681 F.3d 312, 318–19 (6th Cir. 2012) (en banc).\n\f NAAAOM V. CHARTER COMMUNICATIONS 15\n\nGross and Nassar are fairly clear that our approach in\nMetoyer—borrowing the causation standard of Title VII’s\ndiscrimination provision and applying it to § 1981 due to the\nstatutes’ shared objectives, without considering § 1981’s\ntext—is not permitted. See Nassar, 570 U.S. at 350–51;\nGross, 557 U.S. at 175–75 (“Our inquiry therefore must\nfocus on the text of the ADEA to decide whether it authorizes\na mixed-motives age discrimination claim.” (emphasis\nadded)).\n\n Furthermore, in Gross, the Supreme Court determined\nthat borrowing the Title VII causation standard was\ninappropriate in ADEA cases because 1) unlike Title VII’s\ndisparate treatment provision, the text of the ADEA did not\nexplicitly provide that “a plaintiff may establish\ndiscrimination by showing that [the protected characteristic]\nwas simply a motivating factor,” and 2) the ADEA was not\namended to include a motivating factor standard even though\nit was amended contemporaneously with Title VII. 557 U.S.\nat 174–75. Because § 1981 shares these two characteristics\nwith the ADEA, 7 and because the Court determined that\nTitle VII’s standard could not be adopted in the ADEA\ncontext, Gross alone undermines Metoyer to the point of\nirreconcilability.\n\n D. Section 1981’s Text\n\n Accordingly, rather than adopting Title VII’s motivating\nfactor standard in this case, we must instead look to the text\n\n\n\n\n 7\n Like Title VII and the ADEA, § 1981 was amended as part of the\nCivil Rights Act of 1991. See Pub. L. No. 102-166, 105 Stat. 1071,\n1071–72 (1991).\n\f16 NAAAOM V. CHARTER COMMUNICATIONS\n\nof § 1981 to determine whether it permits a departure from\nthe but-for causation standard.\n\n Section 1981 guarantees “the same right” to contract “as\nis enjoyed by white citizens.” 42 U.S.C. § 1981(a). This is\ndistinctive language, quite different from the language of the\nADEA and Title VII’s retaliation provision, both of which\nuse the word “because” and therefore explicitly suggest but-\nfor causation. Charter contends that the most natural\nunderstanding of the “same right” language is also but-for\ncausation. We disagree and are persuaded by the reasoning\nof the Third Circuit in Brown v. J. Kaz, Inc., 581 F.3d 175\n(3d Cir. 2009). There, albeit in dicta and without formally\nresolving the issue, the court reasoned that “[i]f race plays\nany role in a challenged decision by a defendant, the plain\nterms of the statutory text suggest the plaintiff has made out\na prima facie case that section 1981 was violated because the\nplaintiff has not enjoyed ‘the same right’ as other similarly\nsituated persons.” Id. at 182 n.5; see also St. Ange v. ASML,\nInc., No. 3:10-cv-00079-WWE, 2015 WL 7069649, at *2\n(D. Conn. Nov. 13, 2015) (“Where race discrimination is a\nmotivating factor in an adverse employment decision, the\nsubject of the discrimination has not enjoyed the same right\nto the full and equal benefit of the law.”).\n\n If discriminatory intent plays any role in a defendant’s\ndecision not to contract with a plaintiff, even if it is merely\none factor and not the sole cause of the decision, then that\nplaintiff has not enjoyed the same right as a white citizen.\nThis, we conclude, is the most natural reading of § 1981.\nTherefore, unlike the ADEA or Title VII’s retaliation\nprovision, § 1981’s text permits an exception to the default\nbut-for causation standard by virtue of “an indication to the\ncontrary in the statute itself.” Nassar, 570 U.S. at 347.\n\f NAAAOM V. CHARTER COMMUNICATIONS 17\n\n Accordingly, mixed-motive claims are cognizable under\n§ 1981. Even if racial animus was not the but-for cause of a\ndefendant’s refusal to contract, a plaintiff can still prevail if\nshe demonstrates that discriminatory intent was a factor in\nthat decision such that she was denied the same right as a\nwhite citizen.\n\nII. Plausibility of Plaintiffs’ § 1981 Claim\n\n Having determined that a plaintiff in a § 1981 action\nneed only prove that discriminatory intent was a factor in—\nand not necessarily the but-for cause of—a defendant’s\nrefusal to contract, we must now determine whether\nPlaintiffs pleaded a plausible claim for relief in their FAC.\nWe conclude that they did. Plaintiffs’ allegations regarding\nCharter’s treatment of Entertainment Studios, and its\ndiffering treatment of white-owned companies, are sufficient\nto state a viable claim pursuant to § 1981.\n\n A. Allegations of Disparate Treatment\n\n Plaintiffs’ FAC alleged various instances of\ncontradictory, disingenuous, and disrespectful behavior on\nthe part of Charter and its executives. These allegations\ninclude: a pattern of declining and delaying meetings with\nEntertainment Studios, combined with a refusal to contract\ndespite presenting intimations to the contrary; the offering of\n“provably false” explanations for its reluctance to carry\nEntertainment Studios’ channels; and Singer’s repeated\nmisleading and insulting communications with\nEntertainment Studios. We acknowledge that, even when\nconsidered in the light most favorable to Plaintiffs, these\nclaims alone would not constitute a plausible § 1981 claim.\nCorporate red tape, inconsistent decision-making among\nnetwork leadership, and even boorish executives are not\nthemselves necessarily indicative of discrimination.\n\f18 NAAAOM V. CHARTER COMMUNICATIONS\n\n However, Plaintiffs supplemented these claims by\npleading that white-owned companies were not treated\nsimilarly. For example, the FAC stated that, although\nCharter informed Entertainment Studios that bandwidth and\noperational demands prevented carriage of the latter’s\nchannels, Charter secured contracts with “white-owned,\nlesser-known” networks during the same period. 8 Charter\nalso allegedly pointed to Entertainment Studios’ tracking\nmodel as a ground for refusing to contract, while\nsimultaneously accepting white-owned channels that used\nthe same model. Plaintiffs further alleged that Charter’s\nCEO, Rutledge, refused to meet with Entertainment Studios’\nAfrican-American owner, Allen, despite meeting with the\nheads of white-owned programmers during the same time\n\n 8\n Charter argues that we cannot infer disparate treatment from these\nallegations because “[t]he complaint fails to allege any facts whatsoever\nshowing that [Entertainment Studios’] channels are ‘similarly situated’\nto the channels Charter added (or expanded) in respects such as content,\nquality, popularity, viewer demand, or any objective metric relevant to a\ncarriage decision.” It is true that, in order for us to infer discriminatory\nintent from these allegations of disparate treatment, we would need to\nconclude that the white-owned channels were similarly situated to\nEntertainment Studios’. See, e.g., Lindsey v. SLT L.A., LLC, 447 F.3d\n1138, 1147 (9th Cir. 2006). It is also true that television networks can\nvary widely in terms of content, quality, and appeal. See Herring Broad.,\nInc. v. FCC, 515 F. App’x 655, 656–57 (9th Cir. 2013) (exploring\nvarious ways in which television networks can differ). However, such a\nthorough comparison of channels would require a factual inquiry that is\ninappropriate in reviewing a 12(b)(6) motion. See Earl v. Nielsen Media\nResearch, Inc., 658 F.3d 1108, 1114–15 (9th Cir. 2011) (describing the\nfact-intensive, context-dependent analysis needed to determine whether\nindividuals are similarly situated in the related context of employment\ndiscrimination). At this stage of the litigation, we must accept as true\nPlaintiffs’ assertions that other, lesser-known, white-owned networks\nwere selected for carriage at the same time that Charter refused to carry\nEntertainment Studios’ offerings.\n\f NAAAOM V. CHARTER COMMUNICATIONS 19\n\nperiod. We conclude that these allegations, when accepted\nas true and viewed in the light most favorable to Plaintiffs,\nare sufficient under § 1981 to plausibly claim that Charter\ndenied Entertainment Studios the same right to contract as\nwhite-owned companies. 9\n\n B. Charter’s Race-Neutral Explanations\n\n Charter contends that we cannot ignore the legitimate,\nrace-neutral explanations for its conduct that are, admittedly,\npresent on the face of the FAC. These business justifications\ninclude limited bandwidth, timing concerns, and other\noperational considerations. However, at this stage, we are\nnot permitted to weigh evidence and determine whether the\nexplanations proffered by Plaintiffs or Charter are ultimately\nmore persuasive. Instead, we have explained that “[i]f there\nare two alternative explanations, one advanced by defendant\nand the other advanced by plaintiff, both of which are\nplausible, plaintiff’s complaint survives a motion to dismiss\nunder Rule 12(b)(6). Plaintiff’s complaint may be dismissed\nonly when defendant’s plausible alternative explanation is so\nconvincing that plaintiff’s explanation is implausible.” Starr\nv. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).\n\n\n 9\n Furthermore, Plaintiffs’ FAC also included direct allegations of\nracial animus: specifically, the racially charged comments allegedly\nmade by Singer and Rutledge, both of whom were high-ranking Charter\ndecision-makers. Notably, neither of these incidents occurred in the\ncontext of Entertainment Studios’ attempts to secure a carriage contract\nwith Charter, and they can therefore serve only as circumstantial\nevidence of discriminatory animus. See, e.g., Godwin v. Hunt Wesson,\nInc., 150 F.3d 1217, 1221 (9th Cir. 1998); Nesbit v. Pepsico, Inc.,\n994 F.2d 703, 705 (9th Cir. 1993). However, circumstantial evidence of\ndiscrimination is still evidence, and is particularly compelling here when\ncombined with the allegations of disparate treatment contained\nelsewhere in the FAC.\n\f20 NAAAOM V. CHARTER COMMUNICATIONS\n\n Here, it is plausible that Charter’s conduct was\nattributable wholly to legitimate, race-neutral\nconsiderations. But we cannot conclude, based only on the\nallegations in the FAC, construed in the light most favorable\nto Plaintiffs, that those alternative explanations are so\ncompelling as to render Plaintiffs’ allegations of\ndiscriminatory intent implausible. This is especially true\ngiven that Plaintiffs’ allegations of disparate treatment and\ndisingenuous statements suggest that Charter’s race-neutral\nexplanations lack credibility. See Desert Palace, Inc. v.\nCosta, 539 U.S. 90, 100 (2003) (“[E]vidence that a\ndefendant’s explanation for an employment practice is\n‘unworthy of credence’ is ‘one form of circumstantial\nevidence that is probative of intentional discrimination.’”\n(quoting Reeves v. Sanderson Plumbing Prods., Inc.,\n530 U.S. 133, 147 (2000))). In short, we can infer from the\nallegations in the FAC that discriminatory intent played at\nleast some role in Charter’s refusal to contract with\nEntertainment Studios, thus denying the latter the same right\nto contract as a white-owned company. Charter’s race-\nneutral explanations for its conduct are not so convincing as\nto render Plaintiffs’ theory implausible. 10\n\n\n\n\n 10\n Charter also relies in part on In re Century Aluminum Co.\nSecurities Litigation, in which we held that\n\n [w]hen faced with two possible explanations, only one\n of which can be true and only one of which results in\n liability, plaintiffs cannot offer allegations that are\n “merely consistent with” their favored explanation but\n are also consistent with the alternative explanation.\n Something more is needed, such as facts tending to\n exclude the possibility that the alternative explanation\n\f NAAAOM V. CHARTER COMMUNICATIONS 21\n\nIII. First Amendment\n\n Finally, Charter argues that Plaintiffs’ § 1981 claim is\nbarred by the First Amendment because laws of general\napplicability cannot be used “to force cable companies to\naccept channels they do not wish to carry.” We disagree and\nconclude that the First Amendment does not bar Plaintiffs’\nclaim. 11\n\n\n\n is true, in order to render plaintiffs’ allegations\n plausible within the meaning of Iqbal and Twombly.\n\n729 F.3d 1104, 1108 (9th Cir. 2013) (citations omitted) (quoting Ashcroft\nv. Iqbal, 556 U.S. 662, 678 (2009)). However, Century Aluminum is not\nparticularly persuasive here because we are not confronted with two\nmutually exclusive possibilities. It is entirely possible that Charter was\nmotivated by both race-neutral business concerns and discriminatory\nintent—a scenario that, given the applicable causation standard, would\nstill give rise to a viable claim under § 1981. Because both parties’\nexplanations can logically coexist, we conclude that Starr, not Century\nAluminum, provides the proper framework for our analysis. Plaintiffs\ntherefore do not need to provide facts “tending to exclude” Charter’s\ntheory of the case; it is sufficient under Starr that Plaintiffs’ explanation\nis not implausible.\n\n 11\n We note that our analysis here is limited to cases of discriminatory\ncontracting based on a plaintiff’s race, not contracting based on a\nplaintiff’s viewpoint. A bookstore’s choice of which books to stock on\nits shelves, or a theater owner’s decision about which productions to\nstage, or a cable operator’s selection of certain perspectives to air, are\ndecisions based on content, and not necessarily on the racial identities of\nthe parties with which they contract (or refuse to contract). Here, by\ncontrast, Plaintiffs plausibly pleaded that Charter refused to contract with\nEntertainment Studios due to racial animus, and they must ultimately\nprove that Entertainment Studios’ racial identity, separate and apart from\nthe underlying content of its programming, was a factor in Charter’s\ndecision. Accordingly, our First Amendment analysis is limited to cases\ninvolving racially discriminatory contracting that incidentally impacts\n\f22 NAAAOM V. CHARTER COMMUNICATIONS\n\n The Supreme Court has held that “[c]able programmers\nand cable operators engage in and transmit speech, and they\nare entitled to the protection of the speech and press\nprovisions of the First Amendment.” Turner Broad. Sys.,\nInc. v. FCC, 512 U.S. 622, 636 (1994); see also Hurley v.\nIrish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S.\n557, 570 (1995) (“Cable operators . . . are engaged in\nprotected speech activities even when they only select\nprogramming originally produced by others.”). Because\nPlaintiffs’ claim implicates the First Amendment, we must\ndetermine the appropriate standard of review for our\nanalysis.\n\n Here, there is some ambiguity as to whether rational\nbasis review or a heightened form of scrutiny ought to be\napplied. Normally, laws of general applicability that\nregulate conduct and not speech—such as § 1981—trigger\nonly rational basis review. See, e.g., Rumsfeld v. Forum for\nAcad. & Institutional Rights, Inc., 547 U.S. 47, 62 (2006)\n(“Congress . . . can prohibit employers from discriminating\nin hiring on the basis of race. The fact that this will require\nan employer to take down a sign reading ‘White Applicants\nOnly’ hardly means that the law should be analyzed as one\nregulating the employer’s speech rather than conduct.”);\nCohen v. Cowles Media Co., 501 U.S. 663, 670–71 (1991)\n(permitting application of a generally applicable law that had\nan incidental effect on speech and contrasting it with laws\nthat “define[] the content of publications that would trigger\nliability”).\n\n\n\n\nspeech, and should not be construed as applying to cases where a refusal\nto contract is instead based solely on the viewpoint or substance of a\nplaintiff’s content or message.\n\f NAAAOM V. CHARTER COMMUNICATIONS 23\n\n In Hurley, however, the Supreme Court explained that\neven generally applicable laws directed at conduct rather\nthan speech might implicate the First Amendment “[w]hen\nthe law is applied to expressive activity” in a way that\n“require[s] speakers to modify the content of their\nexpression to whatever extent beneficiaries of the law\nchoose to alter it with messages of their own.” 515 U.S. at\n578; see also Turner Broad., 512 U.S. at 640–41 (noting that\n“the enforcement of a generally applicable law may or may\nnot be subject to heightened scrutiny under the First\nAmendment” and contrasting Cohen, where enforcement of\na law did not directly impact expressive conduct, with\nBarnes v. Glen Theatre, Inc., 501 U.S. 560, 566–67 (1991),\nwhere expressive conduct was directly implicated). Here,\nwe conclude that resolution of this issue is not required,\nsince Plaintiffs’ § 1981 claim survives even a heightened\nstandard of review.\n\n Contrary to Charter’s position, the fact that cable\noperators engage in expressive conduct when they select\nwhich networks to carry does not automatically require the\napplication of strict scrutiny in this case. If § 1981 is a\ncontent-neutral statute, then, at most, it would be subject to\nintermediate scrutiny. See Turner Broad., 512 U.S. at 642\n(“[R]egulations that are unrelated to the content of speech\nare subject to an intermediate level of scrutiny.”).\nAccordingly, § 1981 would pass muster under the First\nAmendment if it is content-neutral and if “it furthers an\nimportant or substantial governmental interest; if the\ngovernmental interest is unrelated to the suppression of free\nexpression; and if the incidental restriction on alleged First\nAmendment freedoms is no greater than is essential to the\nfurtherance of that interest.” Id. at 662 (quoting United\nStates v. O’Brien, 391 U.S. 367, 377 (1968)).\n\f24 NAAAOM V. CHARTER COMMUNICATIONS\n\n A. Content Neutrality\n\n Section 1981 does not seek to regulate the content of\nCharter’s conduct, but only the manner in which it reaches\nits editorial decisions—which is to say, free of\ndiscriminatory intent. It is therefore “justified without\nreference to the content of the regulated speech.” Clark v.\nCmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).\nJust as “[n]othing in the [statute]” at issue in Turner\nBroadcasting “imposes a restriction, penalty, or burden by\nreason of the views, programs, or stations the cable operator\nhas selected or will select,” 512 U.S. at 644, nothing in\n§ 1981 punishes a defendant for the content of its\nprogramming. Section 1981 prohibits Charter from\ndiscriminating against networks on the basis of race. This\nprohibition has no connection to the viewpoint or content of\nany channel that Charter chooses or declines to carry. See\nAlpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 801\n(9th Cir. 2011) (“[A]ntidiscrimination laws intended to\nensure equal access to the benefits of society serve goals\n‘unrelated to the suppression of expression’ and are neutral\nas to both content and viewpoint.” (quoting Roberts v. U.S.\nJaycees, 468 U.S. 609, 624 (1984))). Because it does not\nrely upon the content of Charter’s expressive conduct,\n§ 1981 is content-neutral.\n\n B. Narrow Tailoring and Government Interest\n\n Next, to satisfy intermediate scrutiny, a content-neutral\nstatute must be “narrowly tailored to serve a significant\ngovernmental interest.” Clark, 468 U.S. at 293. The\nSupreme Court has regularly emphasized that the prevention\nof racial discrimination is a compelling government interest.\nSee, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.\n2751, 2783 (2014) (“The Government has a compelling\ninterest in providing an equal opportunity to participate in\n\f NAAAOM V. CHARTER COMMUNICATIONS 25\n\nthe workforce without regard to race, and prohibitions on\nracial discrimination are precisely tailored to achieve that\ncritical goal.”); Bob Jones Univ. v. United States, 461 U.S.\n574, 604 (1983) (“[T]he Government has a fundamental,\noverriding interest in eradicating racial discrimination in\neducation.”). The Court has emphasized that this significant\ninterest applies even when expressive activities are\nimpacted:\n\n [A]cts of invidious discrimination in the\n distribution of publicly available goods,\n services, and other advantages cause unique\n evils that government has a compelling\n interest to prevent—wholly apart from the\n point of view such conduct may transmit.\n Accordingly, like violence or other types of\n potentially expressive activities that produce\n special harms distinct from their\n communicative impact, such practices are\n entitled to no constitutional protection.\n\nRoberts, 468 U.S. at 628. Thus, there can be little doubt that\n§ 1981, which is part of a “longstanding civil rights law, first\nenacted just after the Civil War” to “guarantee the then\nnewly freed slaves the same legal rights that other citizens\nenjoy,” CBOCS W., Inc. v. Humphries, 553 U.S. 442, 445,\n448 (2008), serves a significant government interest, and one\nthat is “unrelated to the suppression of free expression.”\nTurner Broad., 512 U.S. at 662 (quoting O’Brien, 391 U.S.\nat 377).\n\n As for whether § 1981 is narrowly tailored to that\ninterest—in other words, whether “the incidental restriction\non alleged First Amendment freedoms is no greater than is\nessential to the furtherance of that interest,” id. at 662\n\f26 NAAAOM V. CHARTER COMMUNICATIONS\n\n(quoting O’Brien, 391 U.S. at 377)—there can be no dispute\nthat the statute “promotes a substantial government interest\nthat would be achieved less effectively absent the\nregulation,” which satisfies the requirement of narrow\ntailoring. Ward v. Rock Against Racism, 491 U.S. 781, 799\n(1989) (quoting United States v. Albertini, 472 U.S. 675, 689\n(1985)). Such regulations are not “invalid simply because\nthere is some imaginable alternative that might be less\nburdensome on speech.” Albertini, 472 U.S. at 689. Section\n1981 does not restrict more speech than necessary; it\nprohibits all racial discrimination in contracting, and the\nSupreme Court has noted that “[a] complete ban can be\nnarrowly tailored, but only if each activity within the\nproscription’s scope is an appropriately targeted evil.”\nFrisby v. Schultz, 487 U.S. 474, 485 (1988). Here, the only\nactivity within § 1981’s ambit is discriminatory contracting,\nwhich is, indisputably, an appropriately targeted evil.\nTherefore, § 1981 is narrowly tailored and would survive\nintermediate scrutiny.\n\n In summation, as with the statute analyzed in Turner\nBroadcasting, § 1981 is a content-neutral regulation that\nwould satisfy even intermediate scrutiny as set forth in\nO’Brien and its progeny. Therefore, the First Amendment\ndoes not bar Plaintiffs’ § 1981 claim.\n\n CONCLUSION\n\n We AFFIRM the district court’s order denying Charter’s\nmotion to dismiss, and REMAND for further proceedings.\nWe also DENY Plaintiffs’ motion to take judicial notice.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364366/", "author_raw": "M. SMITH, Circuit Judge:"}]}	MARY M SCHROEDER	MILAN D SMITH JR	JACQUELINE H NGUYEN	1	{"MARY M SCHROEDER": ", Circuit", "MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587113/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,114		Antonio Islas-Veloz v. Matthew Whitaker	2019-02-04	15-73120	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Michael Daly Hawkins, M. Margaret McKeown, and William A. Fletcher, Circuit Judges.", "parties": "", "opinions": [{"author": "McKEOWN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ANTONIO ISLAS-VELOZ, AKA No. 15-73120\n Antonio Islas,\n Petitioner, Agency No.\n A060-299-672\n v.\n\n MATTHEW G. WHITAKER, Acting OPINION\n Attorney General,\n Respondent.\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Submitted August 27, 2018\n Seattle, Washington\n\n Filed February 4, 2019\n\n Before: Michael Daly Hawkins, M. Margaret McKeown,\n and William A. Fletcher, Circuit Judges.\n\n Opinion by Judge McKeown;\n Concurrence by Judge W. Fletcher\n\n\n\n\n \n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n\n2 ISLAS-VELOZ V. WHITAKER\n\n SUMMARY\n\n\n Immigration\n\n Denying Antonio Islas-Veloz’s petition for review of a\ndecision of the Board of Immigration Appeals, the panel held\nthat Supreme Court and circuit precedent required rejecting\nIslas-Veloz’s contentions that: 1) the phrase “crime involving\nmoral turpitude” was unconstitutionally vague; and 2) his\nconviction for communication with a minor for immoral\npurposes in violation of Revised Code of Washington\n§ 9.68A.090 is not categorically a crime of moral turpitude.\n\n The panel concluded that, in assessing the constitutional\nstatus of the phrase “crime involving moral turpitude,” it\nremains bound by the Supreme Court’s decision in Jordan v.\nDe George, 341 U.S. 223 (1951), in which the Court held that\nthe phrase “crime involving moral turpitude” was not\nunconstitutionally vague. The panel also explained that\nCourt’s more recent decisions in Johnson v. United States,\n135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct.\n1204 (2018), did not reopen inquiry into the constitutionality\nof the phrase. The panel further observed that this court has\nrepeatedly echoed the holding in De George, noting that the\ncourt recently held in Martinez-De Ryan v. Sessions, 895 F.3d\n1191 (9th Cir. 2018), that the phrase is not unconstitutionally\nvague.\n\n The panel also concluded that this court’s precedent\nforeclosed Islas-Veloz’s alternate claim that his conviction\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n ISLAS-VELOZ V. WHITAKER 3\n\nfor communicating with a minor for immoral purposes is not\na crime of moral turpitude.\n\n Concurring, Judge W. Fletcher wrote that the Supreme\nCourt’s recent decisions in Johnson and Dimaya should lead\nthe panel, were it not bound by this court’s precedent in\nMartinez-De Ryan, to conclude that the phrase “crime of\nmoral turpitude” is unconstitutionally vague when used as a\nbasis for the removal of a noncitizen. Observing that this\ncircuit acknowledges a distinction between fraud and non-\nfraud crimes involving moral turpitude, Judge W. Fletcher\nwrote that non-fraud cases comprise the great bulk of crimes\ninvolving moral turpitude today and that the definition of\nnon-fraud crimes involving moral turpitude is hopelessly and\nirredeemably vague.\n\n\n COUNSEL\n\nManuel Rios, Rios & Cruz P.S., Seattle, Washington, for\nPetitioner.\n\nLaura M.L. Maroldy, Trial Attorney; John S. Hogan,\nAssistant Director; Office of Immigration Litigation, Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Respondent.\n\n4 ISLAS-VELOZ V. WHITAKER\n\n OPINION\n\nMcKEOWN, Circuit Judge:\n\n Antonio Islas-Veloz petitions for review of a final order\nof removal following the dismissal of his appeal by the Board\nof Immigration Appeals (“BIA”). We conclude that Supreme\nCourt and circuit precedents require us to deny the petition.\n\n Islas-Veloz was convicted of communication with a\nminor for immoral purposes in violation of Revised Code of\nWashington (“RCW”) § 9.68A.090. An immigration judge\nfound that Islas-Veloz’s conviction constituted a crime\ninvolving moral turpitude committed within five years of\nadmission to the United States and found him removable on\nthat basis. See 8 U.S.C. § 1227(a)(2)(A)(i). The BIA\ndismissed Islas-Veloz’s appeal, ruling that communication\nwith a minor for immoral purposes in violation of RCW\n§ 9.68A.090 was categorically a crime involving moral\nturpitude.\n\n Islas-Veloz argues that the phrase “crime involving moral\nturpitude” is unconstitutionally vague in light of the Supreme\nCourt’s decisions in Johnson v. United States, 135 S. Ct. 2551\n(2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In\nthe alternative, he claims that the crime of “communication\nwith [a] minor for immoral purposes” in violation of RCW\n§ 9.68A.090 is not categorically a crime of moral turpitude,\nand hence that his final order of removal is invalid.\n\n In assessing the constitutional status of the phrase “crime\ninvolving moral turpitude,” we remain bound by the Supreme\nCourt’s decision in Jordan v. De George, 341 U.S. 223\n(1951). In De George, the Court held that the phrase “crime\n\n ISLAS-VELOZ V. WHITAKER 5\n\ninvolving moral turpitude” was not unconstitutionally vague.\nId. at 231–32. The Court’s more recent decisions in Johnson\nand Dimaya did not reopen inquiry into the constitutionality\nof the phrase. Notably, Dimaya acknowledged that the Court\nin De George had “ultimately uph[e]ld” the phrase “crime\ninvolving moral turpitude” against an unconstitutional\nvagueness attack. Dimaya, 138 S. Ct. at 1213.\n\n We have repeatedly echoed the holding that the Supreme\nCourt laid down in De George. In Tseung Chu v. Cornell, we\ncited De George in ruling that the phrase “crime involving\nmoral turpitude” was constitutional. 247 F.2d 929, 938–39\n(9th Cir. 1957). More recently, in Martinez-De Ryan v.\nSessions, we again held that the phrase is not\nunconstitutionally vague. 895 F.3d 1191, 1194 (9th Cir.\n2018); see also Olivas-Motta v. Whitaker, 910 F.3d 1271,\n1281 (9th Cir. 2018). De Ryan explicitly addressed Sessions\nv. Dimaya, explaining that the Supreme Court’s opinion in\nthat case did not change the constitutional status of the\nphrase. See 895 F.3d at 1193–94. As the concurrence\nacknowledges, our precedent cannot be read differently.\n\n Islas-Veloz’s alternate claim that communicating with a\nminor for immoral purposes is not a crime of moral turpitude\nis foreclosed by our decision in Morales v. Gonzales,\n478 F.3d 972 (9th Cir. 2007), abrogated on other grounds in\nAnaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th Cir. 2010).\nIn Morales, we “conclude[d] that [a] conviction for\ncommunication with a minor for immoral purposes”\nconstitutes a crime of moral turpitude. Id. at 978. We\nelaborated: “The full range of conduct prohibited by section\n9.68A.090 of the Revised Code of Washington categorically\nconstitutes a crime involving moral turpitude.” Id.\n\n6 ISLAS-VELOZ V. WHITAKER\n\n Apart from any ongoing debate about the degree of\nambiguity inherent in the phrase “crime involving moral\nturpitude,” these precedents are directly on point, bind us\nhere, and foreclose Islas-Veloz’s arguments.\n\n PETITION DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364367/", "author_raw": "McKEOWN, Circuit Judge:"}, {"author": "W. FLETCHER, Circuit Judge, concurring", "type": "concurrence", "text": "W. FLETCHER, Circuit Judge, concurring:\n\n We are bound by our court’s precedent in Martinez-De\nRyan v. Whitaker, 909 F.3d 247 (9th Cir. 2018), and I\ntherefore concur in the panel’s opinion. However, I write\nseparately because the Supreme Court’s recent decisions in\nJohnson v. United States, 135 S. Ct. 2551 (2015), and\nSessions v. Dimaya, 138 S. Ct. 1204 (2018), should lead us,\nwere we not bound, to conclude that the phrase “crime of\nmoral turpitude” is unconstitutionally vague when used as the\nbasis for removal of a noncitizen. See 8 U.S.C.\n§ 1227(a)(2)(A)(i)-(ii).\n\n I. “Moral Turpitude” in Immigration Law\n\n The Immigration and Nationality Act (“INA”) imposes\nsevere penalties on noncitizens convicted of a “crime\ninvolving moral turpitude” (“CIMT”). See 8 U.S.C.\n§§ 1182(a)(2)(A) (inadmissibility), 1227(a)(2)(A)(i)-(ii)\n(removal), 1229b(b)(1)(C) (ineligibility for cancellation of\nremoval and adjustment of status). Section\n1227(a)(2)(A)(i)–(ii) renders removable any noncitizen who\nis (a) convicted of a “crime involving moral turpitude” within\nfive years of entry for which a sentence of one year or more\nis imposed or, (b) convicted of any two “crimes involving\n\n ISLAS-VELOZ V. WHITAKER 7\n\nmoral turpitude” at any time after entry, regardless of\nsentence length or type. The noncitizen is also ineligible for\ncancellation of removal. 8 U.S.C. § 1229b(b)(1)(C).\n“[R]emoval is a virtual certainty” no matter how long an\nindividual may have previously resided in the United States.\nDimaya, 138 S. Ct. at 1211.\n\n In recent years, the United States has deported many tens\nof thousands of noncitizens under § 1227(a)(2)(A) after\nhaving been convicted of CIMTs. See Transactional Records\nAccess Clearinghouse, Individuals Charged with Moral\nTurpitude in Immigration Court, SYRACUSE UNIV. (last\naccessed Dec. 21, 2018), http://trac.syr.edu/immigration/re\nports/moral_turp.html (collecting data that shows that from\n1996-2006 the United States brought removal proceedings\nagainst over 135,000 noncitizens for “crimes involving moral\nturpitude”); Transactional Records Access Clearinghouse,\nImmigration Court Post-Trump Cases: Latest Data,\nS YRACUSE U NIV ., tbl. 6 (March 21, 2017),\nhttp://trac.syr.edu/immigration/reports/462/ (collecting data\nfrom 2012 to 2017).\n\n The term “moral turpitude” first appeared in federal\nimmigration law in 1891, when Congress barred entry to\npersons “who have been convicted of a felony or other\ninfamous crime or misdemeanor involving moral turpitude.”\nAct of Mar. 3, 1891, ch. 551, 26 Stat. 1084. Sixteen years\nlater, “Congress expanded the class of excluded persons to\ninclude individuals who ‘admit’ to having committed a crime\nof moral turpitude.” Padilla v. Kentucky, 559 U.S. 356, 361\nn.2 (2010) (citing Act of Feb. 20, 1907, ch. 1134, § 2, 34 Stat.\n899.). Ten years later, in the Immigration Act of 1917,\nCongress “rendered deportable” noncitizens who are\n“sentenced to imprisonment for a term of one year or more\n\n8 ISLAS-VELOZ V. WHITAKER\n\nbecause of conviction in this country of a crime involving\nmoral turpitude, committed within five years” of entry and\n“noncitizen recidivists who commit two or more crimes of\nmoral turpitude at any time after entry.” Id. at 361 (citing\nImmigration Act of 1917, ch. 29, §19, 39 Stat. 889). The\nINA, enacted in 1952 and amended thereafter, included these\nsame penalties. In none of those statutes has Congress\ndefined the term “moral turpitude.” Id.\n\n II. Void for Vagueness\n\n In two recent cases, the Supreme Court has revitalized the\nvoid-for-vagueness doctrine in both criminal and civil cases.\n\n First, in Johnson v. United States, 135 S. Ct. 2551 (2015),\nthe Court upheld a vagueness challenge to a provision of the\nArmed Career Criminal Act (“ACCA”). Federal criminal law\nprohibits convicted felons from possessing firearms.\n18 U.S.C. § 922(g). If a felon convicted under § 922(g) has\npreviously been convicted of three or more “serious drug\noffenses” or “violent felonies,” the ACCA increases the\nprison term by a minimum of fifteen years and a maximum of\nlife. Id. at § 924(e)(1). The ACCA defines “violent felony”\nas a crime punishable by a term exceeding a year that\n(i) either has as an element the actual, attempted or threatened\nuse of force or (ii) “is burglary, arson, or extortion, involves\nthe use of explosives, or otherwise involves conduct that\npresents a serious risk of physical injury to another.” Id. at\n§ 924(e)(2)(B) (emphasis added). The italicized language is\nthe ACCA’s “residual clause.”\n\n In an opinion by Justice Scalia, the Court held the residual\nclause unconstitutionally vague. The Court wrote, “Two\nfeatures of the residual clause conspire to make it\n\n ISLAS-VELOZ V. WHITAKER 9\n\nunconstitutionally vague.” Johnson, 135 S. Ct. at 2557.\nFirst, the clause “leaves grave uncertainty about how to\nestimate the risk posed by a crime.” Id. Second, the clause\n“leaves uncertainty about how much risk it takes for a crime\nto qualify as a violent felony.” Id. at 2558. The combination\nproduced “more unpredictability and arbitrariness than the\nDue Process Clause tolerates.” Id. at 2557.\n\n The Court described, and lamented, four recent cases in\nwhich it had reached disparate results under the ACCA\nresidual clause: “[T]his Court’s repeated attempts and\nrepeated failures to craft a principled and objective standard\nout of the residual clause confirm its hopeless\nindeterminancy.” Id. at 2558. The Court pointed out that, in\naddition to its own disparate results, the residual clause had\n“‘created numerous splits among the lower federal courts,’\nwhere it has proved ‘nearly impossible to apply\nconsistently.’” Id. at 2559–60 (quoting Chambers v. United\nStates, 555 U.S. 122, 133 (2009) (Alito, J., concurring in\njudgment)). The Court concluded:\n\n Nine years’ experience trying to derive\n meaning from the residual clause convinces us\n that we have embarked upon a failed\n enterprise. . . . Invoking so shapeless a\n provision to condemn someone to prison for\n fifteen years to life does not comport with the\n Constitution’s guarantee of due process.\n\nId. at 2560.\n\n Second, in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),\nthe Court upheld a vagueness challenge to a provision of the\nINA. The INA renders deportable (or “removable”) a\n\n10 ISLAS-VELOZ V. WHITAKER\n\nnoncitizen convicted of an “aggravated felony” committed\nafter entering the United States. 8 U.S.C.\n§ 1227(a)(2)(A)(iii). The noncitizen is also ineligible, by\nvirtue of the aggravated felony, for cancellation of removal.\nSee id. §§ 1229b(a)(3), (b)(1)(C). The INA defines\n“aggravated felony” to include a felony “that, by its nature,\ninvolves a substantial risk that physical force against the\nperson or property of another may be used in the course of\ncommitting the offense.” 8 U.S.C. § 16(b). The language\njust quoted is the INA’s “residual clause.”\n\n Justice Kagan, writing for the Court, held the INA’s\nresidual clause unconstitutionally vague: “Section 16’s\nresidual clause violates [the] promise [of the due process\nclause] in just the same way” as the residual clause of the\nACCA held unconstitutional in Johnson. Dimaya, 138 S. Ct.\nat 1215. “The result is that § 16(b) produces, just as ACCA’s\nresidual clause did, ‘more unpredictability and arbitrariness\nthan the Due Process Clause tolerates.’” Id. at 1216 (quoting\nJohnson, 135 S. Ct. at 2558).\n\n Writing for a plurality of four, Justice Kagan\nacknowledged that “removal of an alien is a civil matter.” Id.\nat 1213. She nonetheless applied the same test to the INA the\nCourt had applied to the ACCA in Johnson. “[W]e long ago\nheld that the most exacting vagueness standard should apply\nin removal cases.” Id. (citing Jordan v. De George, 341 U.S.\n223, 229 (1951)). She continued, “Nothing in the ensuing\nyears calls that reasoning into question. To the contrary, this\nCourt has reiterated that deportation is ‘a particularly severe\npenalty,’ which may be of greater concern to a convicted\nalien than ‘any potential jail sentence.’” Id. (quoting Jae Lee\nv. United States, 137 S. Ct. 1958, 1968 (2017)). Justice\nGorsuch did not join the portion of Justice Kagan’s opinion\n\n ISLAS-VELOZ V. WHITAKER 11\n\njustifying the application of the “most exacting vagueness\nstandard” in removal cases. He wrote separately, agreeing\nthat the “exacting vagueness standard” should apply in\nremoval cases, but indicating he would apply it in civil cases\nmore broadly. Id. at 1231 (Gorsuch, J., concurring).\nCombining Justice Kagan’s and Justice Gorsuch’s opinions,\na majority of the Court concluded that the “exacting\nvagueness standard” applicable in criminal cases applies, at\nthe very least, in removal cases under the INA.\n\n III. Vagueness of “Crime Involving Moral Turpitude”\n\n A. Jordan v. De George\n\n Almost seventy years ago in Jordan v. De George,\n341 U.S. 223 (1951), the Supreme Court upheld a deportation\norder under the Immigration Act of 1917, based on\nconvictions for crimes involving moral turpitude. De George\nwas an Italian citizen who had lived continuously in the\nUnited States for twenty-nine years, and who had been twice\nconvicted of fraudulently avoiding federal taxes on “distilled\nspirits.” De George, 341 U.S. at 224–25. The Court of\nAppeals for the Seventh Circuit held that tax fraud was not a\nCIMT and set aside the deportation order. Id. at 226. The\nSupreme Court reversed, holding that fraud was a CIMT and\nupholding the deportation.\n\n The Court wrote that “[t]he question of vagueness was not\nraised by the parties nor argued before this Court,” id. at 229,\nbut it addressed the question anyway, in response to three\ndissenting justices. The Court noted that it had previously\nupheld a deportation order premised on a conviction for a\nCIMT when the noncitizen had been convicted of\ncounterfeiting with an intent to defraud. See United States ex\n\n12 ISLAS-VELOZ V. WHITAKER\n\nrel. Volpe v. Smith, 289 U.S. 422 (1933). The Court\nemphasized that the deportation at issue in the case before it,\nas in Volpe, was based on a conviction for fraud:\n\n Fraud is the touchstone by which this case\n should be judged. The phrase “crime\n involving moral turpitude” has without\n exception been construed to embrace\n fraudulent conduct. We therefore decide that\n Congress sufficiently forewarned respondent\n that the statutory consequence of twice\n conspiring to defraud the United States is\n deportation.\n\nId. at 232.\n\n The Court wrote that there might be some “marginal\noffenses” or “peripheral cases” that might (or might not) be\nencompassed within the phrase “crimes involving moral\nturpitude.” Id. at 231–32. However, “difficulty in\ndetermining whether certain marginal offenses are within the\nmeaning of the language under attack as vague does not\nautomatically render a statute unconstitutional for\nindefiniteness.” Id. at 231. “Whatever else the phrase ‘crime\ninvolving moral turpitude’ may mean in peripheral cases, the\ndecided cases make it plain that crimes in which fraud was an\ningredient have always been regarded as involving moral\nturpitude.” Id. at 232.\n\n Justice Jackson, joined by Justices Black and Frankfurter,\ndissented. He wrote, “What the Government seeks, and what\nthe Court cannot give, is a basic definition of ‘moral\nturpitude’ to guide administrators and lower courts.” Id. at\n233 (Jackson, J., dissenting). He continued:\n\n ISLAS-VELOZ V. WHITAKER 13\n\n Congress did not see fit to state what\n meaning it attributes to the phrase “crime\n involving moral turpitude.” It is not one\n which has settled significance from being\n words of art in the profession. If we go to the\n dictionaries, the last resort of the baffled\n judge, we learn little except that the\n expression is redundant, for turpitude alone\n means moral wickedness or depravity and\n moral turpitude seems to mean little more\n than morally immoral. The Government\n confesses that it is a “term that is not clearly\n defined,” and says: “The various definitions\n of moral turpitude provide no exact test by\n which we can classify the specific offenses\n here involved.\n\n Except for the Court’s opinion, there\n appears to be universal recognition that we\n have here an undefined and undefinable\n standard.\n\nId. at 234–35.\n\n B. Void for Vagueness\n\n 1. Questions Today\n\n There are two questions before us today, almost seventy\nyears after the Court’s decision in De George.\n\n First, the Court in De George concluded that the only\ncases in which the meaning of “crime involving moral\nturpitude” might have been impermissibly vague were\n\n14 ISLAS-VELOZ V. WHITAKER\n\n“marginal offenses” or “peripheral cases.” Whether at the\ntime De George was decided such cases were, in fact, merely\n“marginal” or “peripheral,” I need not consider. The question\ntoday is whether non-fraud cases are still so few—so\nmarginal or peripheral—that they need not concern us.\n\n Second, the Court in De George did not quarrel with\nJustice Jackson’s conclusion that the definition of “crimes\ninvolving moral turpitude” in non-fraud cases was\nunconstitutionally vague. The question today is whether, in\nthe time since the Court’s decision in De George, judicial\nconstruction has clarified the definition in non-fraud cases.\n\n The answer to both questions is clear. Non-fraud CIMTs\ntoday are neither marginal nor peripheral, and the definition\nof non-fraud CIMTs is as vague today as it was in 1951.\n\n 2. The Reality Today\n\n Our circuit acknowledges the distinction between fraud\nand non-fraud cases, dividing CIMTs into two categories,\n“‘those involving fraud and those involving grave acts of\nbaseness or depravity.’” Marmolejo-Campos v. Holder,\n558 F.3d 903, 910 (9th Cir. 2009) (en banc) (quoting Carty v.\nAshcroft, 395 F.3d 1081, 1083 (9th Cir. 2005); see also, e.g.,\nMenendez v. Whitaker, 908 F.3d 467, 472–73 (9th Cir. 2018)\n(“We have traditionally identified two different types of\ncrimes involving moral turpitude: ‘those involving fraud and\nthose involving grave acts of baseness or depravity.’”\n(quoting Carty, 395 F.3d at 1083)); Mancilla-Delafuente v.\nLynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (“There are two\ntypes of possible CIMTs: those involving fraud and those\ninvolving grave acts of baseness or depravity.” (internal\nquotation omitted)); Robles-Urrea v. Holder, 678 F.3d 702,\n\n ISLAS-VELOZ V. WHITAKER 15\n\n708 (9th Cir. 2012) (“Such crimes are of two types: those\ninvolving fraud and those involving grave acts of baseness or\ndepravity.”).\n\n Our sister circuits and the Board of Immigration Appeals\n(“BIA”) consistently define moral turpitude as conduct that\nis “base, vile, and depraved,” and recognize that fraud is\nalways a CIMT. See, e.g., Chiao Fang Ku v. Attorney Gen.\nUnited States of Am., 912 F.3d 133 (3d Cir. 2019) (“Courts\nhave long treated fraud crimes as ‘involving moral\nturpitude.’” (citing De George, 341 U.S. at 232)); Pierre v.\nU.S. Attorney Gen., 879 F.3d 1241, 1251 (11th Cir. 2018)\n(“Whether a crime involves the depravity or fraud necessary\nto be one of moral turpitude depends upon the inherent nature\nof the offense . . . .” (internal citations omitted)); Guevara-\nSolorzano v. Sessions, 891 F.3d 125, 135 (4th Cir. 2018) (“A\nCIMT is a crime that is ‘inherently base, vile, or depraved,’\nmeaning that it involves conduct ‘that not only violates a\nstatute but also independently violates a moral norm.’”\n(citation omitted)); Baptiste v. Attorney Gen., 841 F.3d 601,\n621 (3d Cir. 2016) (defining morally turpitudinous conduct\nas “inherently base, vile, or depraved, contrary to the\naccepted rules of morality and the duties owed other persons”\n(citation omitted)); Arias v. Lynch, 834 F.3d 823, 826 (7th\nCir. 2016) (“The Board has defined a crime involving moral\nturpitude as ‘conduct that shocks the public conscience as\nbeing inherently base, vile, or depraved, and contrary to the\naccepted rules of morality and the duties owed between\npersons or to society in general.’ We have adopted definitions\nsubstantively in line with the Board’s.” (internal citation\nomitted)); Mejia v. Holder, 756 F.3d 64, 68 (1st Cir. 2014)\n(defining CIMT as “conduct that shocks the public\nconscience as being inherently base, vile, or depraved, and\ncontrary to the accepted rules of morality and the duties owed\n\n16 ISLAS-VELOZ V. WHITAKER\n\nbetween persons or to society in general” (citation omitted));\nEfstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014)\n(“Whether a prior conviction constitutes a CIMT turns on\nwhether the crime is ‘inherently base, vile, or depraved.’”\n(citation omitted)); Yeremin v. Holder, 738 F.3d 708, 714 (6th\nCir. 2013) (“The term ‘refers generally to conduct that is\ninherently base, vile, or depraved, and contrary to the\naccepted rules of morality and the duties owed between\npersons or to society in general.’ . . . Crimes that involve\ndeception or fraud consistently are held to qualify as crimes\ninvolving moral turpitude.” (citation omitted)); Marin-\nRodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013)\n(“Crimes entailing an intent to deceive or defraud are\nunquestionably morally turpitudinous.”); Rodriguez-Heredia\nv. Holder, 639 F.3d 1264, 1268 (10th Cir. 2011) (“Although\n‘crime involving moral turpitude’ is not defined by statute,\nwe have said that ‘moral turpitude refers to conduct which is\ninherently base, vile, or depraved, contrary to the accepted\nrules of morality and the duties owed between man and man,\neither one’s fellow man or society in general.’ Applying this\nconcept, we have followed Supreme Court precedent making\nit ‘plain that crimes in which fraud was an ingredient have\nalways been regarded as involving moral turpitude.’”\n(internal citations omitted)); Guardado-Garcia v. Holder,\n615 F.3d 900, 902 (8th Cir. 2010) (“Crimes involving moral\nturpitude have been held to require conduct ‘that is inherently\nbase, vile, or depraved, and contrary to accepted rules of\nmorality and the duties owed between persons or to society in\ngeneral.’ ‘Crimes involving the intent to deceive or defraud\nare generally considered to involve moral turpitude.’ (internal\ncitations omitted)); Hyder v. Keisler, 506 F.3d 388, 391 (5th\nCir. 2007) (“‘Moral turpitude refers generally to conduct that\nshocks the public conscience as being inherently base, vile,\nor depraved, and contrary to the accepted rules of morality\n\n ISLAS-VELOZ V. WHITAKER 17\n\nand the duties owed between persons or to society in general.’\n. . . We have repeatedly emphasized that crimes whose\nessential elements involve fraud or deception tend to be\nCIMTs.” (internal citations omitted)); Matter of Zaragoza-\nVaquero, 26 I. & N. Dec. 814, 815–16 (BIA 2016) (“Moral\nturpitude refers generally to conduct that shocks the public\nconscience as being inherently base, vile, or depraved, and\ncontrary to accepted rules of morality and the duties owed\nbetween persons or to society in general. . . . Crimes that\nrequire intent to defraud are [] crimes involving moral\nturpitude.”); Matter of Flores, 17 I. & N. Dec. 225, 227–28\n(BIA 1980) (“Moral turpitude is a nebulous concept which\nrefers generally to conduct which is inherently base, vile, or\ndepraved, contrary to the accepted rules of morality and the\nduties owed between man and man, either one’s fellow man\nor society in general. . . . The most frequently cited definition\nof moral turpitude was given by the Supreme Court in Jordan\nv. DeGeorge, 341 U.S. 223, 232 (1951), where it was stated:\n‘Whatever else the phrase crime involving moral turpitude\nmay mean in peripheral cases, the decided cases make it\nplain that crimes in which fraud was an ingredient have\nalways been regarded as involving moral turpitude.’”); Matter\nof E-----, 2 I & N Dec. 134, 140 (BIA 1944) (“[A] crime\ninvolves moral turpitude when its nature is such that it\nmanifests upon the part of its perpetrator personal depravity\nor baseness.”).\n\n If CIMTs were restricted to fraud, there would be no\nconstitutional difficulty. But in the decades since De George\nwas decided, courts and administrators significantly expanded\nthe conduct that qualifies as “base, vile, or depraved” and,\ntherefore, “morally turpitudious.” Far from being marginal\nor peripheral, non-fraud cases comprise the great bulk of\n\n18 ISLAS-VELOZ V. WHITAKER\n\nCIMTs today. Further, the definition of non-fraud CIMTs is\nhopelessly and irredeemably vague.\n\n In a recent law review article, Professor Simon-Kerr\nprovided a number of examples that show both the breadth of\nthe CIMT category and the vagueness of the definition of\nnon-fraud CIMTs. Citing cases, she wrote, “Moral turpitude\njurisprudence today suggests that society condemns as\nimmoral the petty thief, but not the person who attacks a\npolice officer.” Julia Ann Simon-Kerr, Moral Turpitude,\n2012 UTAH L. REV. 1001, 1005 (2012). Compare Michel v.\nI.N.S., 206 F.3d 253, 261 (2d Cir. 2000) (holding that petty\ntheft for stolen bus transfers is a CIMT), with Zaranska v.\nU.S. Dep’t of Homeland Sec., 400 F. Supp. 2d 500, 511, 514\n(E.D.N.Y. 2005) (holding that second degree assault on\npolice officer is not a CIMT). “‘[A]ggravated fleeing’ is\ninherently base, vile, and depraved, while some forms of\naggravated assault do not violate community norms of\nmorality.” Simon-Kerr, Moral Turpitude, supra, at 1005.\nCompare Mei v. Ashcroft, 393 F.3d 737, 741–42 (7th Cir.\n2004) (aggravated fleeing), with Carr v. I.N.S., 86 F.3d 949,\n950–51 (9th Cir. 1996) (aggravated assault). See also Alonzo\nv. Lynch, 821 F.3d 951, 958 (8th Cir. 2016) (“Assault may or\nmay not involve moral turpitude.” (citation omitted));\nZaranska, 400 F. Supp. 2d at 514 (“[A]ccording to the BIA,\nsimple assault is not a crime of moral turpitude, but assault\nwith a deadly weapon is; a conviction for misconduct that\ncaused bodily injury is not a crime of moral turpitude, but\nwhere the conduct caused serious bodily injury, it is.”).\n“Drunk driving repeatedly is deemed not to involve moral\nturpitude, but drunk driving with a suspended license is\nassessed differently.” Simon-Kerr, Moral Turpitude, supra,\nat 1005. Compare In re Torres-Varela, 23 I. & N. Dec. 78,\n83–84 (BIA 2001) (en banc) (drunk driving repeatedly), with\n\n ISLAS-VELOZ V. WHITAKER 19\n\nMarmolejo-Campos v. Holder, 558 F.3d 903, 917 (9th Cir.\n2009) (en banc) (drunk driving with suspended license).\n\n More examples are easy to find. Some convictions under\nstate hit-and-run statutes are crimes involving moral turpitude\nwhile other convictions are not. See Orosco v. Holder,\n396 Fed. App’x 50, 52–55 (5th Cir. 2010) (failure to report an\naccident where no injury resulted is not a CIMT); Latu v.\nMukasey, 547 F.3d 1070, 1073–76 (9th Cir. 2008) (a driver\nwho stops and renders aid but fails to give requisite\ninformation to police had not committed a CIMT); Cerezo v.\nMukasey, 512 F.3d 1163 (9th Cir. 2008) (a conviction under\na California hit-and-run statute is not a conviction for a\nCIMT, but leaving the scene of an accident is a CIMT);\nGarcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007)\n(a conviction under a Texas hit-and-run statute is a conviction\nfor a CIMT). Citing cases, Kornegay and Professor Lee have\nprovided still more examples. They wrote, “Among the\noffenses that may or may not be [crimes involving moral\nturpitude] are manslaughter, fraud, sex offenses against\nchildren, child abandonment and child abuse, indecent\nexposure, assault, misprision of felony, false statements, and\ndriving under the influence.” Lindsay M. Kornegay & Evan\nTsen Lee, Why Deporting Immigrants for “Crimes Involving\nMoral Turpitude” Is Now Unconstitutional, 13 DUKE J.\nCONST. L. & PUB. POL’Y 47, 61–63 (2017).\n\n Modern federal courts and the BIA have repeatedly\ncomplained that the definition of CIMTs is vague. A sample\nof such complaints includes Menendez v. Whitaker, 908 F.3d\n467, 472 (9th Cir. 2018) (stating that “[t]he meaning of the\nterm falls well short of clarity” (citation omitted)); Arias v.\nLynch, 834 F.3d 823, 830, 835 (7th Cir. 2016) (Posner, J.,\nconcurring) (calling CIMT a “stale, antiquated, and, worse,\n\n20 ISLAS-VELOZ V. WHITAKER\n\nmeaningless phrase,” a “vague[]” phrase, “rife with\ncontradiction, a fossil, [and] an embarrassment to a modern\nlegal system,” and discussing “remarkable dissent by Justice\nJackson” in De George, which “exposed [the] emptiness” of\nthe moral turpitude concept); Bobadilla v. Holder, 679 F.3d\n1052, 1053–54 (8th Cir. 2012) (calling it a “murky statutory\nstandard” and stating, “[w]ithout question, the term [CIMT]\nis ambiguous.”); Marmolejo-Campos, 558 F.3d at 909\n(“‘Moral turpitude’ is perhaps the quintessential example of\nan ambiguous phrase.”); Ali v. Mukasey, 521 F.3d 737, 739\n(7th Cir. 2008) (calling moral turpitude a “notoriously\nplastic” concept); Garcia-Meza v. Mukasey, 516 F.3d 535,\n536 (7th Cir. 2008) (calling the standard “notoriously\nbaffling”); Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995)\n(“[M]oral turpitude is a nebulous concept and there is ample\nroom for differing definitions of the term.”); Zaranska, 400 F.\nSupp. 2d at 513–14 (“‘Moral turpitude’ historically has\nreferred to conduct which is inherently base, vile, or\ndepraved, and contrary to the accepted rules of morality and\nthe duties owed between persons or to society in general. In\nother words, there is no useful definition for the term.”\n(internal quotations omitted)); In re Lopez-Meza, 22 I. & N.\nDec. 1188, 1191 (BIA 1999) (“[B]oth the courts and this\nBoard have referred to moral turpitude as a ‘nebulous\nconcept’ with ample room for differing definitions of the\nterm. . . . Under this standard, the nature of a crime is\nmeasured against contemporary moral standards and may be\nsusceptible to change based on the prevailing views in\nsociety.”); Matter of Short, 20 I. & N. Dec. 136, 139 (BIA\n1989) (describing “moral turpitude” as a “nebulous\nconcept”); Matter of McNaughton, 16 I. & N. Dec. 569, 574\n(BIA 1978) (describing moral turpitude as a “vague” term).\n\n ISLAS-VELOZ V. WHITAKER 21\n\n Despite many years of trying, courts and administrators\nhave not been able to establish coherent criteria. See Nunez\nv. Holder, 594 F.3d 1124, 1130 (9th Cir. 2010) (“We have\npreviously discussed at some length the inherent ambiguity of\nthe phrase ‘moral turpitude’ and the consistent failure of\neither the BIA or our own court to establish any coherent\ncriteria for determining which crimes fall within that\nclassification and which crimes do not.”); Marmolejo-\nCampos v. Holder, 558 F.3d 903, 921 (9th Cir. 2009) (en\nbanc) (Berzon, J., dissenting) (“[T]he BIA’s precedential case\nlaw regarding the meaning of the phrase ‘crime involving\nmoral turpitude’ . . . is a mess of conflicting authority.”);\nNicanor-Romero v. Mukasey, 523 F.3d 992, 997–99 (9th Cir.\n2009), overruled on other grounds by Marmolejo-Campos,\n558 F.3d 903 (summarizing Ninth Circuit law on moral\nturpitude and recognizing that “[w]e have not relied on a\nconsistent or easily applied set of criteria” to identify crimes\nof moral turpitude); Partyka v. Attorney General, 417 F.3d\n408, 409 (3d Cir. 2005) (calling moral turpitude jurisprudence\nan “amorphous morass”); Mei v. Ashcroft, 393 F.3d 737, 741\n(7th Cir. 2004) (“The Board should not be blamed too harshly\n[for widely varying results in what is considered a CIMT];\ncourts have equally failed to impart a clear meaning to ‘moral\nturpitude.’ Time has only confirmed Justice Jackson’s\npowerful dissent in the De George case, in which he called\n‘moral turpitude’ an ‘undefined and undefinable standard.’\nThe term may well have outlived its usefulness.” (internal\ncitation omitted)); Mei v. Ashcroft, 393 F.3d 737, 739 (7th\nCir. 2004) (“Since Congress did not define ‘crime involving\nmoral turpitude’ when it inserted the term in the immigration\nstatute, and the term had no settled meaning at the time (and\nhas none still), it is reasonable to suppose ala Chevron that\nCongress contemplated that the agency charged with\nadministering the statute would define the term, and\n\n22 ISLAS-VELOZ V. WHITAKER\n\nspecifically would tailor the definition to the policies\nembodied in the immigration statutes. The Board of\nImmigration Appeals has done neither. . . . [T]he Board\nhasn’t done anything to particularize the meaning of ‘crime\ninvolving moral turpitude’ . . . .”); Tseung Chu v. Cornell,\n247 F.2d 929, 933 (9th Cir. 1957) (“We are not unmindful of\nthe myriad decisions sponsoring various concepts of moral\nturpitude. They offer no well settled criteria.”); see also De\nGeorge, 341 U.S. at 239–40 (Jackson, J., dissenting) (“No\none can read this body of opinions and feel that its application\nrepresents a satisfying, rational process. If any consistent\npattern of application or consensus of meaning could be\ndistilled from judicial decision, neither the Government nor\nthe Court spells it out. Irrationality is inherent in the task of\ntranslating the religious and ethical connotations of the phrase\ninto legal decisions. The lower court cases seem to rest, as we\nfeel this Court’s decision does, upon the moral reactions of\nparticular judges to particular offenses.”).\n\n Justice Alito, joined by Chief Justice Roberts, recently\nechoed these complaints in Padilla, arguing that an attorney\ndid not provide ineffective assistance of counsel when he\nfailed to determine whether a particular offense was a CIMT.\nJustice Alito listed a number offenses that may or may not be\ncrimes involving moral turpitude (citing R. McWhirter, ABA,\nThe Criminal Lawyer’s Guide to Immigration Law: Questions\nand Answers 134 (2d ed. 2006)):\n\n See [McWhirter] at 134 (“Writing bad checks\n may or may not be a CIMT” (emphasis\n added); ibid. (“[R]eckless assault coupled\n with an element of injury, but not serious\n injury, is probably not a CIMT” (emphasis\n added)); id. at 135 (misdemeanor driving\n\n ISLAS-VELOZ V. WHITAKER 23\n\n under the influence is generally not a CIMT,\n but may be a CIMT if he DUI results in injury\n or if the driver knew that his license had been\n suspended or revoked); id. at 136 (“If there is\n no element of actual injury, the endangerment\n offense may not be a CIMT” (emphasis\n added); ibid. (“Whether [a child abuse]\n conviction involves moral turpitude may\n depend on the subsection under which the\n individual is convicted. Child abuse done with\n criminal negligence probably is not a CIMT”\n (emphasis added)).\n\nPadilla, 559 U.S. at 379 (Alito, J., concurring).\n\n 3. Recent Example\n\n A recent decision of our court illustrates Justice Alito’s\npoint. Manuel Olivas-Motta was legally present in the United\nStates as a noncitizen lawful permanent resident. Olivas-\nMotta v. Whitaker, 910 F.3d 1271, 1283 (9th Cir. 2018)\n(Watford, J., dissenting). He had been brought to the United\nStates in 1976 by his parents when he was ten days old. Id.\nHe was married to a United States citizen and had two citizen\nchildren. Id. Most of his extended family lived in the United\nStates as either citizens or lawful permanent residents. Id.\n\n Olivas-Motta was charged under Arizona law with\naggravated assault and attempted murder. Id. If he had been\nconvicted as charged, the conviction would have rendered\nhim removable. Id. Olivas-Motta contended that he was\ninnocent of the charges, but he was willing to plead guilty to\n“reckless endangerment” rather than go to trial if he could be\nassured that reckless endangerment was not a CIMT. Id.\n\n24 ISLAS-VELOZ V. WHITAKER\n\nOlivas-Motta’s attorney consulted with an experienced\nimmigration attorney who advised that in all likelihood\nreckless endangerment under Arizona law was not a CIMT.\nId. The attorney’s advice was based on two non-precedential\ndecisions by the BIA that had specifically held that reckless\nendangerment in Arizona was not a CIMT. Olivas-Motta\nrelied on the immigration attorney’s advice, and he pleaded\nguilty to reckless endangerment. Id. at 1284.\n\n Five years after Olivas-Motta’s guilty plea, the BIA\nchanged course. In Matter of Leal, 26 I. & N. Dec. 20 (BIA\n2012), aff’d sub nom. Leal v. Holder, 771 F.3d 1140 (9th Cir.\n2014), the BIA abandoned the position taken in its two prior\ndecisions, now holding that reckless endangerment under\nArizona law is a CIMT. Based on its decision in Matter of\nLeal, the BIA ordered Olivas-Motta removed because he had\nbeen convicted of two CIMTs. Id. at 1275. Over a dissent by\nJudge Watford, we denied Olivas-Motta’s petition for review.\nId.\n\n 4. State Courts’ Experience\n\n Use of the phrase “moral turpitude” under state law\nincreasingly has been abandoned or forbidden. Starting in the\n19th and 20th centuries, states used the term “moral\nturpitude” as a criterion to disqualify and impeach witnesses,\nto decide whether certain language is slanderous, to\ndisenfranchise voters, and to disbar attorneys and revoke\nmedical licenses, among other applications. See De George,\n341 U.S. at 227 (discussing use of the term in other contexts);\nSimon-Kerr, Moral Turpitude, supra (same). Seventy years\nago in De George, the majority began its discussion by\nrecognizing this history, stating that “[t]he term ‘moral\nturpitude’ has deep roots in the law.” De George, 341 U.S.\n\n ISLAS-VELOZ V. WHITAKER 25\n\nat 227. Citing states’ use of the phrase in other, non-\nimmigration contexts, the Court reasoned, “In deciding the\ncase before the Court, we look to the manner in which the\nterm ‘moral turpitude’ has been applied by judicial decision.”\nId. Finding that, “[w]ithout exception, federal and state\ncourts have held that a crime in which fraud is an ingredient\ninvolves moral turpitude,” the Court went on to hold that\nfraud was a CIMT. Id.\n\n But in the decades since De George, many states have\ndiscontinued use of the phrase “moral turpitude” in various\ncontexts. See, e.g., Simon-Kerr, Moral Turpitude, supra, at\n1040–44. For example, citing the phrase’s vagueness and the\nresulting inconsistent rulings, the vast majority of states have\nabandoned use of the phrase “moral turpitude” in the context\nof witness impeachment. See Simon-Kerr, Moral Turpitude,\nsupra, at 1033–39; see also, e.g., State v. Morgan,\n541 S.W.2d 385, 388 (Tenn. 1976) (reasoning that judges\nfaced great “difficulty” in “applying a test that is vague and\ncannot be explicitly defined,” that the dictionary definition of\n“moral turpitude” had provided no guidance, and that the\nstandard had produced inconsistent rulings); Tucker v. Lower,\n434 P.2d 320, 324 (Kan. 1967) (noting that CIMT has “a\nvague and uncertain meaning which plagues the courts”);\nHeating Acceptance Corp. v. Patterson, 208 A.2d 341,\n343–44 (Conn. 1965) (noting that the “uncertainty” of the\nterm “moral turpitude” had caused “not inconsiderable”\ndifficulties for judges and ultimately deciding to abandon the\nterm); Vt. R. Evid. 609, Reporter’s Notes on 1989\nAmendment (1989) (“Subdivision (a) is amended to replace\n‘moral turpitude’ with more precise and relevant standards\nfor determining the admissibility of prior convictions for\nimpeachment. Moral turpitude was troublesome because it\nwas at once underinclusive and overinclusive, as well as\n\n26 ISLAS-VELOZ V. WHITAKER\n\nvague.”); Maine R. Evid. 609, Advisers’ Note to Former\nM.R. Evid. 609–February 2, 1976 (calling moral turpitude a\n“troublesome phrase” before switching to a clearer\nimpeachment standard).\n\n In the context of voter disenfranchisement, use of the\nphrase has been struck down due to discriminatory intent and\nimpact. See Simon-Kerr, Moral Turpitude, supra, at\n1040–41; Hunter v. Underwood, 471 U.S. 222, 233 (1985)\n(holding that Alabama’s constitutional provision\ndisenfranchising citizens convicted of a crime of moral\nturpitude was unconstitutional). The term’s very “fuzziness\n. . . made it well suited to the purpose of” selective, arbitrary\nand discriminatory decision making. Simon-Kerr, Moral\nTurpitude, supra, at 1040.\n\n Conclusion\n\n Rooted in the Due Process Clause, the void-for-vagueness\ndoctrine serves two primary purposes. It “guarantees that\nordinary people have ‘fair notice’ of the conduct a statute\nproscribes,” and it “guards against arbitrary or discriminatory\nlaw enforcement by insisting that a statute provide standards\nto govern the actions of police officers, prosecutors, juries,\nand judges.” Dimaya, 138 S. Ct. at 1212.\n\n Congress did not define “moral turpitude” when it\nintroduced the term into our immigration law in 1891. Sixty\nyears later, Justice Jackson wrote that “moral turpitude” was\nstill “an undefined and undefinable standard.” De George,\n341 U.S at 235 (Jackson, J., dissenting). Now, almost\nseventy years after De George, “moral turpitude” is as\nundefined and undefinable as ever.\n\n ISLAS-VELOZ V. WHITAKER 27\n\n Justice Scalia wrote of the ACCA’s residual clause in\nJohnson, “Nine years’ experience trying to derive meaning\nfrom the residual clause convinces us that we have embarked\nupon a failed enterprise.” Johnson, 135 S. Ct. at 2560. We\nhave had not just nine years but more than a century of\nexperience with “moral turpitude.” It is time to recognize\nanother failed enterprise.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364367/", "author_raw": "W. FLETCHER, Circuit Judge, concurring"}]}	MICHAEL DALY HAWKINS	M MARGARET MCKEOWN	WILLIAM A FLETCHER	1	{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587114/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
9,022,986	NATIONAL ASSOCIATION OF AFRICAN AMERICAN-OWNED MEDIA, a California Limited Liability Company Entertainment Studios Networks, Inc., a California Corporation v. COMCAST CORPORATION, a Pennsylvania Corporation	Nat'l Ass'n of African Am.-Owned Media v. Comcast Corp.	2019-02-04	No. 16-56479	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016223/"}]}				0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022986/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,847		The Depot, Inc. v. Caring for Montanans, Inc.	2019-02-06	17-35597	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: William A. Fletcher and Jay S. Bybee, Circuit Judges, and Larry A. Burns,* District Judge.", "parties": "", "opinions": [{"author": "BYBEE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n THE DEPOT, INC.; UNION CLUB No. 17-35597\n BAR, INC.; TRAIL HEAD, INC.,\n Plaintiffs-Appellants, D.C. No.\n 9:16-cv-00074-DLC\n v.\n\n CARING FOR MONTANANS, INC., OPINION\n FKA Blue Cross Blue Shield of\n Montana, Inc.; HEALTH CARE\n SERVICES CORPORATION,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the District of Montana\n Dana L. Christensen, Chief Judge, Presiding\n\n Argued and Submitted December 7, 2018\n Seattle, Washington\n\n Filed February 6, 2019\n\n Before: William A. Fletcher and Jay S. Bybee, Circuit\n Judges, and Larry A. Burns,* District Judge.\n\n Opinion by Judge Bybee\n\n\n \n The Honorable Larry A. Burns, United States District Judge for the\nSouthern District of California, sitting by designation.\n\f2 THE DEPOT V. CARING FOR MONTANANS\n\n SUMMARY\n\n\n Employee Retirement Income Security Act\n\n The panel affirmed in part and reversed in part the district\ncourt’s dismissal of an action brought under ERISA and\nMontana state law against health insurance companies and\nremanded for further proceedings.\n\n The companies marketed health insurance plans, branded\n“Chamber Choices,” to members of the Montana Chamber of\nCommerce. Three small employers, Chamber members that\nprovided their employees with healthcare coverage under\nChamber Choices plans, alleged misrepresentations in the\nmarketing of the plans.\n\n Affirming the district court’s dismissal of the ERISA\nclaims, the panel held that plaintiffs failed to state a claim for\nbreach of fiduciary duty under 29 U.S.C. § 1132(a)(2) in\ndefendants’ alleged charging of excessive premiums. The\npanel held that, in secretly charging excessive premiums,\ndefendants did not act as fiduciaries of the plans because they\ndid not exercise discretion over plan management or control\nover plan assets. Plaintiffs also failed to state a claim for\nequitable relief under § 1132(a)(3) for prohibited transactions\nin imposing unreasonable charges for kickbacks and\nunrequested benefits because plaintiffs’ requested relief of\nrestitution or disgorgement was not equitable in nature.\n\n\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f THE DEPOT V. CARING FOR MONTANANS 3\n\n The panel reversed the dismissal of plaintiffs’ state-law\nclaims, based on defendants’ alleged misrepresentations that\nthe premiums charged reflected the actual medical premium\namount. The panel held that ERISA did not expressly\npreempt the state-law claims because the claims did not have\na reference to or an impermissible connection with an ERISA\nplan, and therefore did not “relate to” an ERISA plan. The\nstate-law claims also were not conflict-preempted by ERISA.\nThe panel nonetheless agreed with the district court that\nplaintiffs’ allegations did not state with particularity the\ncircumstances of the alleged fraud, as required by Federal\nRule of Civil Procedure 9(b). The panel therefore reversed\nthe dismissal with prejudice of the state-law claims so that\nplaintiffs could amend their complaint to state the fraud\nallegations with greater particularity. The panel noted,\nhowever, that the district court was also free on remand to\ndecline to exercise supplemental jurisdiction over the state-\nlaw claims.\n\n\n COUNSEL\n\nKenneth J. Halpern (argued), Rachana A. Pathak, Dana\nBerkowitz, and Peter K. Stris, Stris & Maher LLP, Los\nAngeles, California; John Morrison, Morrison Sherwood\nWilson & Deola PLLP, Helena, Montana; for Plaintiffs-\nAppellants.\n\nAnthony F. Shelley (argued) and Theresa Gee, Miller &\nChevalier Chartered, Washington, D.C.; Michael David\nMcLean and Stefan T. Wall, Wall McLean & Gallagher,\nPLLC, Helena, Montana; for Defendant-Appellee Caring for\nMontanans, Inc.\n\f4 THE DEPOT V. CARING FOR MONTANANS\n\nStanley T. Kaleczyc (argued), M. Christy S. McCann, and\nKimberly A. Beatty, Browning Kaleczyz Berry & Hoven\nP.C., Helena, Montana, for Defendant-Appellee Health Care\nServices Corporation.\n\n\n OPINION\n\nBYBEE, Circuit Judge:\n\n Plaintiffs are three small employers in Montana who are\nmembers of the Montana Chamber of Commerce.\nDefendants are health insurance companies that marketed\nfully insured health insurance plans to the Chamber’s\nmembers branded “Chamber Choices.” From 2006 until\n2014, plaintiffs provided their employees with healthcare\ncoverage under Chamber Choices plans, and did so based on\ndefendants’ representations that the monthly premiums would\nreflect only the cost of providing benefits. But according to\nplaintiffs, these representations were false—defendants\npadded the premiums with hidden surcharges, which they\nused to pay kickbacks to the Chamber and to buy\nunauthorized insurance products.\n\n Upon learning of these surcharges, plaintiffs filed suit\nagainst defendants, asserting two claims under the Employee\nRetirement Income Security Act of 1974 (“ERISA”),\n29 U.S.C. § 1001 et seq., as well as several state-law claims\nbased on defendants’ misrepresentations. The district court\ndismissed all of the claims, concluding that plaintiffs failed\nto state actionable claims under ERISA while at the same\ntime concluding that plaintiffs’ state-law claims are\npreempted by ERISA. We affirm the district court’s\n\f THE DEPOT V. CARING FOR MONTANANS 5\n\ndismissal of plaintiffs’ ERISA claims, reverse the dismissal\nof plaintiffs’ state-law claims, and remand.\n\n I. BACKGROUND\n\nA. Factual Background\n\n Plaintiffs are three small businesses operating in\nMontana.1 The Depot, Inc. is a steakhouse; Union Club Bar,\nInc. is a bar; and Trail Head, Inc. is a sporting goods retailer.\nDuring the period relevant to this lawsuit, plaintiffs were\nmembers of the Montana Chamber of Commerce. Blue Cross\nBlue Shield of Montana (“BCBSMT”)—an insurance\ncompany that is now known as Caring for Montanans, Inc.\n(“CFM”)—marketed “fully-insured” group health insurance\nplans to the Chamber’s employer-members known as\n“Chamber Choices.” Health Care Service Corp. (“HCSC”)\npurchased the health insurance business of BCBSMT in July\n2013 and marketed the Chamber Choices plans thereafter.\n\n From 2006 to 2014, plaintiffs enrolled in Chamber\nChoices plans and paid monthly premiums to defendants in\nexchange for health insurance coverage for their employees.\nCoverage for plaintiffs’ employees hinged on plaintiffs\npaying the required monthly premiums. According to\nplaintiffs, “[i]n the course of marketing Chamber Choices,”\ndefendants represented that the premiums would be equal to\nthe “actual medical premium”—i.e., “the cost of providing\ninsurance benefits to covered individuals plus administrative\n\n\n 1\n Because this case comes to us on review of a motion to dismiss, we\naccept as true the factual allegations in the operative complaint. See\nAskins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1038 (9th Cir.\n2018).\n\f6 THE DEPOT V. CARING FOR MONTANANS\n\ncosts” and “[not] for any purpose other than to pay for the\npurchased health insurance coverage.” Plaintiffs accordingly\nrelied on that representation in choosing to participate.\n\n All parties agree that each Chamber Choices plan\nconstituted an “employee welfare benefit plan” subject to\nERISA. 29 U.S.C. § 1002(1); see Fossen v. Blue Cross &\nBlue Shield of Mont., Inc., 660 F.3d 1102, 1109–10 (9th Cir.\n2011). According to the Member Guide for one of the\nChamber Choices plans2—which provides a summary of\nbenefits available to covered employees for the relevant\nyear—the employers (i.e., plaintiffs), not BCBSMT, were the\nnamed “plan administrator[s]” and fiduciaries under ERISA.\nDefendants, however, performed most of the claim\nmanagement and administration duties. Plaintiffs’ role was\nlimited to deducting monthly premiums from their\nemployees’ wages to send to defendants for coverage and\nnotifying defendants if an employee lost eligibility for\ncoverage. The Member Guide also purported to allow\ndefendants to make changes to the terms of the policy in the\nfollowing modification provision:\n\n [BCBSMT] may make administrative changes\n or changes in dues, terms or Benefits in the\n Group Plan by giving written notice to the\n Group and/or purchasing pool member at least\n 60 days in advance of the effective date of the\n changes. Dues may not be increased more\n\n\n\n 2\n Plaintiffs incorporated the Member Guide by reference in their\ncomplaint. See Santomenno v. Transamerica Life Ins. Co., 883 F.3d 833,\n836 n.2 (9th Cir. 2018). According to plaintiffs, the Member Guide is\nrepresentative of the Chamber Choices plans.\n\f THE DEPOT V. CARING FOR MONTANANS 7\n\n than once during a 12-month period, except as\n allowed by Montana law.\n\nThe requirement that enrollees receive 60 days’ advance\nnotice of modifications is consistent with federal and state\nlaws governing group health plans, including plans not\nsubject to ERISA. See 29 C.F.R. § 2590.715-2715(b)\n(requiring 60 days’ advance notice of “any material\nmodification . . . in any of the terms of the plan or coverage”);\nMont. Code Ann. § 33-22-107(3)(a) (requiring 60 days’\nadvance notice of “a change in rates or a change in terms or\nbenefits”).\n\n Plaintiffs allege that, while they subscribed to Chamber\nChoices plans, defendants unlawfully padded the premiums\nwith two surcharges without plaintiffs’ knowledge or consent.\nFirst, from 2006 to 2014, defendants secretly embedded a\nsurcharge into the premiums, which they used to pay\nkickbacks to the Chamber. These kickbacks were designed\nto persuade the Chamber to continue to market defendants’\nplans to its members. Second, from 2008 to 2014, defendants\nsecretly embedded an additional surcharge into the premiums\nthat defendants used to purchase “additional insurance\nproducts that [plaintiffs] did not request or authorize.”\nPlaintiffs further allege that defendants took efforts to conceal\nthese surcharges. Beginning in 2009, defendants began\n“channeling the kickbacks to the Chamber through an\ninsurance agent and channeling a share of the [surcharges]\ninto a ‘rate stabilization’ account.” And beginning in 2012,\ndefendants began “making cryptic notations that itemized\ncertain charges on the bills” in an effort to “reduce [their]\nown legal risk.”\n\f8 THE DEPOT V. CARING FOR MONTANANS\n\n In February 2014, the Montana Commissioner of\nSecurities and Insurance fined BCBSMT $250,000 for illegal\ninsurance practices under Montana law, including billing in\nexcess of the actual medical premium and paying kickbacks\nto the Chamber. See Mont. Code Ann. §§ 33-18-208, 33-18-\n212. After the Commissioner’s findings were publicly\nreleased in March 2014, a group of Chamber Choices\nparticipants filed a class action suit against defendants in state\ncourt alleging claims of breach of fiduciary duty, breach of\ncontract, unfair and deceptive trade practices, and unjust\nenrichment. Mark Ibsen, Inc. v. Caring for Montanans, Inc.,\n371 P.3d 446, 448 (Mont. 2016). After defendants\nunsuccessfully tried to remove the case to federal court, the\nstate trial court dismissed the lawsuit, finding that the\nplaintiffs’ claims were based on statutory violations and that\nthe relevant state statute did not provide a private right of\naction. Id. at 448–49. The Montana Supreme Court affirmed.\nId. at 455.\n\nB. Procedural History\n\n Plaintiffs filed this lawsuit in federal court in June 2016.\nIn their original complaint, plaintiffs raised two ERISA\nclaims: a breach of fiduciary duty claim under 29 U.S.C.\n§ 1132(a)(2), and a prohibited interested-party transaction\nclaim under 29 U.S.C. § 1132(a)(3). Plaintiffs also raised\nstate-law claims for breach of contract, breach of fiduciary\nduty, breach of the implied covenant of good faith and fair\ndealing, negligent misrepresentation, unjust enrichment, and\nunfair trade practices under the Montana Unfair Trade\nPractices and Consumer Protection Act, Mont. Code Ann.\n§ 30-14-101 et seq.\n\f THE DEPOT V. CARING FOR MONTANANS 9\n\n The district court dismissed the original complaint\nwithout prejudice. The court concluded that defendants did\nnot satisfy ERISA’s definition of a “fiduciary” for purposes\nof the breach of fiduciary duty claim, and that plaintiffs\nwere not seeking “appropriate equitable relief” as required\nfor the prohibited transaction claim. The court also\nconcluded that plaintiffs’ state-law claims were preempted\nby ERISA because they constituted “alternative enforcement\nmechanisms” to the prohibited transaction claim.\n\n Plaintiffs filed their amended complaint in March 2017.\nAs before, plaintiffs assert two claims under ERISA: a breach\nof fiduciary duty claim under 29 U.S.C. § 1132(a)(2), and a\nprohibited transaction claim under 29 U.S.C. § 1132(a)(3).\nPlaintiffs also assert state-law claims for fraudulent\ninducement, constructive fraud, negligent misrepresentation,\nunjust enrichment, and unfair trade practices. The district\ncourt dismissed all of the claims, this time with prejudice.\nThe court concluded that plaintiffs failed to remedy the\ndefects in their ERISA claims and that plaintiffs’ state-law\nclaims (including the new fraud claims) were still preempted\nby ERISA. The court also concluded that plaintiffs’\nallegations of fraud do not satisfy the heightened pleading\nrequirements under Federal Rule of Civil Procedure 9(b).\nPlaintiffs timely appealed, and we have jurisdiction pursuant\nto 28 U.S.C. § 1291.\n\n II. STANDARD OF REVIEW\n\n On appeal, plaintiffs challenge the district court’s\ndismissal of their ERISA claims as well as the dismissal of\ntheir state-law claims. We review de novo a district court’s\norder granting a motion to dismiss for failure to state a claim\nunder Federal Rule of Civil Procedure 12(b)(6). Santomenno\n\f10 THE DEPOT V. CARING FOR MONTANANS\n\nv. Transamerica Life Ins. Co., 883 F.3d 833, 836 (9th Cir.\n2018). To survive a motion to dismiss, the complaint “must\ncontain sufficient factual matter, accepted as true, to ‘state a\nclaim to relief that is plausible on its face.’” Ashcroft v.\nIqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.\nTwombly, 550 U.S. 544, 570 (2007)). We will thus “affirm\na dismissal for failure to state a claim where there is no\ncognizable legal theory or an absence of sufficient facts\nalleged to support a cognizable legal theory.” Interpipe\nContracting, Inc. v. Becerra, 898 F.3d 879, 886 (9th Cir.\n2018) (quoting L.A. Lakers, Inc. v. Fed. Ins. Co., 869 F.3d\n795, 800 (9th Cir. 2017)). And although “we accept as true\nall factual allegations,” we do not “accept as true allegations\nthat are conclusory.” In re NVIDIA Corp. Sec. Litig.,\n768 F.3d 1046, 1051 (9th Cir. 2014). Nor do we consider\nfactual assertions made for the first time on appeal, as “our\nreview is limited to the contents of the complaint.” Allen v.\nCity of Beverly Hills, 911 F.2d 367, 372 (9th Cir. 1990); see\nAmgen Inc. v. Harris, 136 S. Ct. 758, 760 (2016) (per\ncuriam).\n\n We also review de novo a dismissal for failure to satisfy\nFederal Rule of Civil Procedure 9(b), which requires a party\nalleging fraud to “state with particularity the circumstances\nconstituting fraud.” WPP Luxembourg Gamma Three Sarl v.\nSpot Runner, Inc., 655 F.3d 1039, 1047 (9th Cir. 2011)\n(quoting Fed. R. Civ. P. 9(b)).\n\n III. ERISA CLAIMS\n\n We begin with plaintiffs’ claims under ERISA.\n“Congress enacted ERISA to ‘protect the interests of\nparticipants in employee benefit plans and their beneficiaries’\nby setting out substantive regulatory requirements for\n\f THE DEPOT V. CARING FOR MONTANANS 11\n\nemployee benefit plans” and “an integrated system of\nprocedures for enforcement.” Aetna Health Inc. v. Davila,\n542 U.S. 200, 208 (2004) (internal alterations omitted) (first\nquoting 29 U.S.C. § 1001(b); then quoting Mass. Mut. Life\nIns. Co. v. Russell, 473 U.S. 134, 147 (1985)). Relevant here,\nERISA’s enforcement scheme provides a cause of action\nagainst plan fiduciaries for breach of their fiduciary duties,\n29 U.S.C. § 1132(a)(2), and a cause of action to remedy plan\nor ERISA violations—including prohibited interested-party\ntransactions—with “appropriate equitable relief,” id.\n§ 1132(a)(3). Plaintiffs bring claims against defendants under\nboth provisions. We address each in turn.\n\nA. Breach of Fiduciary Duty Claim\n\n Plaintiffs claim that, by collecting and concealing the\npremium surcharges, defendants breached their fiduciary\nduties—including a duty “to act ‘solely in the interest of the\nparticipants and beneficiaries,’” Varity Corp. v. Howe,\n516 U.S. 489, 506 (1996) (quoting 29 U.S.C. § 1104(a)(1))—\nand are thus liable under 29 U.S.C. § 1132(a)(2).3 But to\nbreach a fiduciary duty, one must be a fiduciary. And here,\ndefendants were not acting as fiduciaries when taking the\naction subject to plaintiffs’ complaint. We thus affirm the\ndistrict court’s dismissal of plaintiffs’ breach of fiduciary\nduty claim.\n\n\n\n 3\n Under § 1132(a)(2), a plan participant, beneficiary, or fiduciary may\nbring “[a] civil action . . . for appropriate relief under [§ 1109].”\nSection 1109 imposes personal liability upon “[a]ny person who is a\nfiduciary with respect to a plan who breaches any of the responsibilities,\nobligations, or duties imposed upon fiduciaries by [ERISA].” 29 U.S.C.\n§ 1109(a).\n\f12 THE DEPOT V. CARING FOR MONTANANS\n\n There are two types of fiduciaries under ERISA. First, a\nparty that is designated “in the plan instrument” as a fiduciary\nis a “named fiduciary.” 29 U.S.C. § 1102(a)(2). Second,\nERISA provides the following definition of what is\nsometimes referred to as a “functional” fiduciary:\n\n [A] person is a fiduciary with respect to a plan\n to the extent (i) he exercises any discretionary\n authority or discretionary control respecting\n management of such plan or exercises any\n authority or control respecting management or\n disposition of its assets, (ii) he renders\n investment advice for a fee or other\n compensation, direct or indirect, with respect\n to any moneys or other property of such plan,\n or has any authority or responsibility to do so,\n or (iii) he has any discretionary authority or\n discretionary responsibility in the\n administration of such plan.\n\nId. § 1002(21)(A); Santomenno, 883 F.3d at 837. Because a\nperson4 is a fiduciary under this provision only “to the extent”\nthe person engages in the listed conduct, a person may be a\nfiduciary with respect to some actions but not others. Pegram\nv. Herdrich, 530 U.S. 211, 225–26 (2000) (quoting 29 U.S.C.\n§ 1002(21)(A)); see Acosta v. Brain, 910 F.3d 502, 519 (9th\nCir. 2018) (“[W]e must distinguish between a fiduciary\n‘acting in connection with its fiduciary responsibilities’ with\nregard to the plan, as opposed to the same individual or entity\n‘acting in its corporate capacity.’ Only the former triggers\nfiduciary status; the latter does not.” (internal citation\n\n 4\n ERISA’s definition of “person” includes “corporation[s]” and other\n“association[s].” 29 U.S.C. § 1002(9).\n\f THE DEPOT V. CARING FOR MONTANANS 13\n\nomitted)). The central question is “whether that person was\nacting as a fiduciary (that is, was performing a fiduciary\nfunction) when taking the action subject to complaint.”\nPegram, 530 U.S. at 226.\n\n Plaintiffs claim that defendants were acting as fiduciaries\nwhen charging excessive premiums based on the functions\ndescribed in subparagraph (i)—exercising discretion over\nplan management and exercising authority over plan assets.5\nThese provisions are distinct and therefore must be analyzed\nseparately. See IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d\n1415, 1421 (9th Cir. 1997).\n\n 1. Discretion over Plan Management\n\n Plaintiffs first argue that, in secretly charging excessive\npremiums, defendants “exercise[d] . . . discretionary authority\nor discretionary control respecting [plan] management.”\n29 U.S.C. § 1002(21)(A)(i). We disagree. Insurance\ncompanies do not normally exercise discretion over plan\nmanagement when they negotiate at arm’s length to set rates\nor collect premiums. That is because these negotiations occur\nbefore the agreement is executed, at which point the insurer\nhas no relationship to the plan and thus no discretion over its\nmanagement.\n\n\n\n 5\n Plaintiffs do not argue that defendants acted as fiduciaries under\n29 U.S.C. § 1002(21)(A)(iii), which provides that a person is a fiduciary\nto the extent it “has any discretionary authority or discretionary\nresponsibility in the administration of [the] plan.” Insurers generally act\nin a fiduciary capacity under this “plan administration” provision when\nmaking a discretionary determination about whether a claimant is entitled\nto benefits. See King v. Blue Cross & Blue Shield of Ill., 871 F.3d 730,\n745–46 (9th Cir. 2017).\n\f14 THE DEPOT V. CARING FOR MONTANANS\n\n We addressed a similar issue in Santomenno, holding that\na service provider—i.e., a company that managed a self-\nfunded ERISA plan as a third-party administrator—“is not an\nERISA fiduciary when negotiating its compensation with a\nprospective customer.” 883 F.3d at 837. The service\nprovider in that case performed several functions for\nretirement plans, including the selection of various potential\ninvestments, and its compensation was set as a fixed\npercentage of the assets managed. Id. at 835–36. We\nexplained that “[a] service provider is plainly not involved in\nplan management when negotiating its prospective fees”; to\nthe contrary, “at that stage ‘discretionary control over plan\nmanagement lies with the trustee, who decides whether to\nagree to the service provider’s terms.’” Id. at 838 (internal\nalterations omitted) (quoting Santomenno ex rel. John\nHancock Tr. v. John Hancock Life Ins. Co. (U.S.A.), 768 F.3d\n284, 293 (3d Cir. 2014) (“John Hancock”)). In other words,\n“‘a service provider owes no fiduciary duty with respect to\nthe negotiation of its fee compensation’ because ‘nothing\nprevent[s] the trustees from rejecting the provider’s product\nand selecting another service provider; the choice [i]s\ntheirs.’” Id. (internal alterations omitted) (quoting John\nHancock, 768 F.3d at 295). And after the contract is\nexecuted, the “service provider cannot be held liable for\nmerely accepting previously bargained-for fixed\ncompensation” because “the plan administrator act[s] as ‘a\nfiduciary only for purposes of administering the plan, not for\npurposes of negotiating or collecting its compensation.’” Id.\nat 840 (citations omitted).\n\n The reasoning in Santomenno applies equally to rate-\nsetting by insurance companies. Premium rates, like fixed\ncompensation fees, are generally negotiated in “an arm’s\nlength bargain presumably governed by competition in the\n\f THE DEPOT V. CARING FOR MONTANANS 15\n\nmarketplace,” Schulist v. Blue Cross of Iowa, 717 F.2d 1127,\n1132 (7th Cir. 1983), which means that the insurance\ncompany is “free to negotiate its [rates] with an eye to its\nprofits,” Srein v. Soft Drink Workers Union, Local 812, 93\nF.3d 1088, 1096 (2d Cir. 1996). Because the potential\npurchaser of the insurance policy remains free to “reject[ ] the\n[insurer’s] product and select[ ] another,” the insurance\ncompany “is plainly not involved in plan management when\nnegotiating” premium rates. Santomenno, 883 F.3d at 838\n(quoting John Hancock, 768 F.3d at 295); see also Cotton v.\nMass. Mut. Life Ins. Co., 402 F.3d 1267, 1278–79 (11th Cir.\n2005) (“Simply urging the purchase of its products does not\nmake an insurance company an ERISA fiduciary with respect\nto those products.” (citation omitted)).\n\n That reasoning forecloses plaintiffs’ claim here. Plaintiffs\nconcede that the terms of the insurance agreements in this\ncase—including the premium amounts—were negotiated at\narm’s length. The agreements were thus “‘presumably\ngoverned by competition in the marketplace’ that specified\nthe premium rates.” Seaway Food Town, Inc. v. Med. Mut. of\nOhio, 347 F.3d 610, 618 (6th Cir. 2003) (quoting Schulist,\n717 F.2d at 1132). And the alleged misconduct in this\ncase—misrepresenting that the monthly premiums reflected\nonly the actual medical premium—occurred when the\npolicies were being marketed. Indeed, plaintiffs allege that\ndefendants made these misrepresentations in an effort to\n“induce [p]laintiffs to buy coverage through Chamber\nChoices.” Although plaintiffs may not have known about the\nsurcharges when deciding to subscribe to Chamber Choices\nplans, the premium amounts were fully disclosed, and\nplaintiffs always remained free to walk away and select\n\f16 THE DEPOT V. CARING FOR MONTANANS\n\nanother insurance company.6 Defendants exercised no\ndiscretionary control over the plan’s management at that\npoint.\n\n Although plaintiffs agree that insurance companies do not\nordinarily act as fiduciaries when negotiating premium rates,\nthey claim that this is not an ordinary case. Rather, according\nto plaintiffs, defendants possessed an ability to exercise\ndiscretion over the plan by virtue of the modification\nprovision in the Member Guide:\n\n [BCBSMT] may make administrative changes\n or changes in dues, terms or Benefits in the\n Group Plan by giving written notice to the\n Group and/or purchasing pool member at least\n 60 days in advance of the effective date of the\n changes. Dues may not be increased more\n than once during a 12-month period, except as\n allowed by Montana law.\n\nPlaintiffs argue that this provision granted defendants an\nunfair “ability to unilaterally amend plan terms” upon “mere\nnotice to the beneficiaries” and therefore “subjected [them] to\nERISA fiduciary duties.”\n\n Generally, a “company does not act in a fiduciary\ncapacity when deciding to amend . . . a welfare benefits\n\n 6\n Plaintiffs contend that, because the surcharges were concealed, the\npremiums were not “definitively calculable and nondiscretionary\ncompensation . . . clearly set forth in a contract with the fiduciary-\nemployer.” Santomenno, 883 F.3d at 841. But the premiums were fully\ndisclosed and negotiated; the fact that defendants did not disclose the\ncomposition of the premiums (or how they were spending them) does not\nmean that defendants exercised discretion in setting them.\n\f THE DEPOT V. CARING FOR MONTANANS 17\n\nplan.” Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73,\n78 (1995) (citation omitted). Setting that aside, the mere\nexistence of a discretionary ability is insufficient to bestow\nfiduciary status if that discretion was not “exercise[d].”\n29 U.S.C. § 1002(21)(A)(i). Even assuming plaintiffs’\ncontention that the modification provision granted defendants\nthe ability to unilaterally amend plan terms, plaintiffs do not\nadequately allege that defendants ever exercised that\ndiscretion, let alone “when taking the action subject to\ncomplaint.” Pegram, 530 U.S. at 226. Indeed, plaintiffs\nconcede that defendants “initially imposed the surcharges in\nan arms-length negotiation”—i.e., before the modification\nprovision was effective.7 Thus, even if defendants may have\nbecome fiduciaries “at some point after entering into the\ncontracts, [they] plainly held no such status prior to the\nexecution of the contracts” when the premium amounts were\nnegotiated. Santomenno, 883 F.3d at 839 (internal alterations\nomitted) (quoting F.H. Krear & Co. v. Nineteen Named Trs.,\n810 F.2d 1250, 1259 (2d Cir. 1987)).\n\n We made this point in Santomenno. There, the plaintiffs\nargued that the service provider “was a fiduciary when\n\n 7\n Plaintiffs point to an allegation in the complaint that defendants\n“‘imposed and increased’ the non-premium surcharges ‘without providing\nthe notice required by contract.’” That conclusory allegation does not\nindicate that defendants exercised discretion under the modification\nprovision. Nor would such an allegation be plausible, because plaintiffs’\ntheory is that the modification provision granted defendants discretion to\nincrease premiums, not “non-premium surcharges.” And if, as plaintiffs\nallege, they “had no way to know” that defendants were embedding\nsurcharges into the premium amounts, any alleged increases would have\nhad to occur before the premium amounts were agreed to. Otherwise, a\nmid-year increase in surcharges would have led to a mid-year increase in\npremiums, a fact that is not alleged in the complaint and that would have\nbeen quite obvious to plaintiffs had it occurred.\n\f18 THE DEPOT V. CARING FOR MONTANANS\n\nselecting the investment options because it retaine[d] the right\nto delete or substitute the funds the employer ha[d] selected\nfor the Plan.” Id. at 839 n.5. We disagreed, observing that\nthe plaintiffs failed to “allege that [the service provider] ever\nexercised its discretion.” Id. We also noted that the service\nprovider could “only alter investment options upon six\nmonths’ notice,” and that the contract “allow[ed] the\nemployer opportunity to terminate the contract if displeased\nwith any change.” Id. Similarly, we rejected the plaintiffs’\nreliance on a contractual provision that allowed the service\nprovider “to change [its fees] upon advance written notice,”\nexplaining that the “plaintiffs have not alleged that [the\nservice provider] ever changed its fees; indeed, if it did, the\nemployer is free under the [contract] to find another\nprovider.” Id. at 839 n.4; see id. at 841 n.8 (similar). The\nbottom line is that a party is a fiduciary only to the extent the\nparty actually exercises the alleged discretionary control or\nauthority over plan management.\n\n Seeking to overcome this conclusion, plaintiffs argue that\ndefendants did exercise discretion after the contracts were\nexecuted by virtue of their “decision to continue charging\ninflated amounts, when [they] held complete and unilateral\nauthority to eliminate those overcharges.” This\nargument—which condemns defendants for failing to\nexercise discretion under the very provision that plaintiffs\ndenounce as unfair—is unpersuasive. In this context, a\nfailure to exercise discretion does not amount to an exercise\nof discretion within the meaning of § 1002(21)(A)(i). See\nSantomenno, 883 F.3d at 839 n.5. Once defendants agreed to\nenter into a contract with plaintiffs, defendants may have\nacquired fiduciary status with respect to some plan functions,\nsee, e.g., King v. Blue Cross & Blue Shield of Ill., 871 F.3d\n730, 745–46 (9th Cir. 2017), but any fiduciary status\n\f THE DEPOT V. CARING FOR MONTANANS 19\n\ndefendants may have acquired did not compel defendants to\nrenegotiate the premium rates they had just agreed to accept.\nRather, defendants were “merely accepting previously\nbargained-for” premiums, and the bargaining itself did not\ngive rise to fiduciary status. Santomenno, 883 F.3d at 840\n(citation omitted).8 Thus, in allegedly charging and collecting\nexcessive premiums—which is “the action subject to\ncomplaint,” Pegram, 530 U.S. at 226—defendants were not\nexercising discretionary authority over plan management.\n\n 2. Control over Plan Assets\n\n Plaintiffs separately argue that defendants acted as\nfiduciaries because they “exercise[d] . . . authority or control\nrespecting management or disposition of [plan] assets.”\n29 U.S.C. § 1002(21)(A)(i). Plaintiffs contend that the\npremiums they paid to defendants for insurance coverage\nwere “plan assets” and that defendants were subject to\nfiduciary obligations when using them. But plaintiffs’\npremise is flawed. Premiums paid to an insurance company\nin return for coverage under a fully insured insurance policy\nare not “plan assets.”\n\n 8\n Defendants’ failure to exercise discretion also sets this case apart\nfrom the cases cited by plaintiffs in which an insurer actually exercised\ndiscretion that had been granted in the contract. See, e.g., Ed Miniat, Inc.\nv. Globe Life Ins. Grp., Inc., 805 F.2d 732, 734, 737–38 (7th Cir. 1986)\n(insurer “unilaterally and without justification announced . . . an\nabandonment of existing policy holders, by reducing the rate of return paid\non account . . . and increasing premium rates to the maximum allowed by\nthe policy”); Chi. Bd. Options Exch., Inc. v. Conn. Gen. Life Ins. Co.,\n713 F.2d 254, 255, 259–60 (7th Cir. 1983) (insurer “exercis[ed]” its\ndiscretion to make a “unilateral amendment [to] an annuity contract” from\nwhich the plaintiffs could not withdraw). Here, the premiums charged\nwere based not on defendants’ discretion but instead on arm’s-length\nnegotiations.\n\f20 THE DEPOT V. CARING FOR MONTANANS\n\n ERISA defines “plan assets” to mean “plan assets as\ndefined by such regulations as the Secretary [of Labor] may\nprescribe.” Id. § 1002(42). Although the Secretary has not\nprescribed a comprehensive regulation defining “plan\nassets,”9 several circuits have followed the “consistent[ ]”\nposition of “[t]he Department of Labor . . . that ‘the assets of\na plan generally are to be identified on the basis of ordinary\nnotions of property rights under non-ERISA law.’” Gordon\nv. CIGNA Corp., 890 F.3d 463, 472 (4th Cir. 2018) (citing\nU.S. Dep’t of Labor, Advisory Op. No. 93-14A, 1993 WL\n188473, at 4 (May 5, 1993)); accord Merrimon v. Unum Life\nIns. Co. of Am., 758 F.3d 46, 56 (1st Cir. 2014); Hi-Lex\nControls, Inc. v. Blue Cross Blue Shield of Mich., 751 F.3d\n740, 745 (6th Cir. 2014); Tussey v. ABB, Inc., 746 F.3d 327,\n339 (8th Cir. 2014); Edmonson v. Lincoln Nat. Life Ins. Co.,\n725 F.3d 406, 427 (3d Cir. 2013); Faber v. Metro. Life Ins.\nCo., 648 F.3d 98, 105–06 (2d Cir. 2011); In re Luna,\n406 F.3d 1192, 1199 (10th Cir. 2005). We agree with this\nweight of authority; absent applicable regulatory guidance,\nplan “assets” under 29 U.S.C. § 1002(A)(21)(i) are to be\nidentified based on ordinary notions of property rights.10\n\n 9\n A Department of Labor regulation defines “assets of the plan” to\n“include amounts . . . that a participant or beneficiary pays to an employer,\nor amounts that a participant has withheld from his wages by an employer,\nfor contribution . . . to the plan, as of the earliest date on which such\ncontributions . . . can reasonably be segregated from the employer’s\ngeneral assets.” 29 C.F.R. § 2510.3-102(a)(1). As explained below, this\nregulation is inapplicable here because the “amounts” plaintiffs seek to\nrecover are not amounts that were “pa[id] to an employer” by plan\nparticipants but instead amounts paid by an employer to an insurance\ncompany.\n 10\n Although we have adopted a “functional definition of what\nconstitutes an ‘asset of the plan’ for purposes of [29 U.S.C. § 1106],”\nKayes v. Pac. Lumber Co., 51 F.3d 1449, 1466–67 (9th Cir. 1995) (citing\n\f THE DEPOT V. CARING FOR MONTANANS 21\n\n Applying that principle here, we conclude that neither\nplaintiffs nor their employees had a property interest in the\npremium payments once they were paid to defendants.\nPlaintiffs paid the premiums to defendants in exchange for a\ncontractual right to receive a particular service—healthcare\ncoverage under a Chamber Choices plan. The premiums\nwere monthly fees that defendants collected as revenue for\nproviding that service. Upon paying the premiums, plaintiffs\nhad no “beneficial ownership interest” in them. Hi-Lex\nControls, 751 F.3d at 745 (quoting U.S. Dep’t of Labor,\nAdvisory Op. No. 92-24A, 1992 WL 337539, at 2 (Nov. 6,\n1992)). Instead, defendants were simply indebted to plaintiffs\nto provide the agreed-upon coverage. Cf. Grupo Mexicano de\nDesarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308,\n319–20 (1999) (“[A] general creditor . . . ha[s] no cognizable\ninterest, either at law or in equity, in the property of his\ndebtor, and therefore [may] not interfere with the debtor’s use\nof that property.”).\n\n Plaintiffs try to equate the premiums paid to defendants\nwith “participant contributions” made into a self-funded plan,\nwhich are generally deemed to be plan assets. Acosta v. Pac.\nEnters., 950 F.2d 611, 620 & n.7 (9th Cir. 1991); see\n29 C.F.R. § 2510.3-102(a)(1); Advisory Op. No. 92-24A,\n1992 WL 337539, at 2. But plaintiffs elide the distinction\nbetween a self-funded plan and a fully insured plan. Under\na “self-funded” plan, the insurance company “acts only as a\nthird-party administrator; the employer is responsible for\npaying claims [out of the employees’ contributions] and\nbearing the financial risk.” N. Cypress Med. Ctr. Operating\n\n\nAcosta v. Pac. Enters., 950 F.2d 611, 620 (9th Cir. 1991)), that definition\nassumes fiduciary status and is thus not helpful in determining whether a\nparty is in fact a fiduciary under 29 U.S.C. § 1002(A)(21)(i).\n\f22 THE DEPOT V. CARING FOR MONTANANS\n\nCo., Ltd. v. Aetna Life Ins. Co., 898 F.3d 461, 468 (5th Cir.\n2018); see Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936,\n941–42 (2016). Premiums paid under a self-funded plan are\ntherefore contributions from employees earmarked and held\nin trust by the employer for the employees’ later benefit. See\nGordon, 890 F.3d at 472; Hi-Lex Controls, 751 F.3d at 747.\nThese employer-held contributions are therefore assets of the\nplan. See 29 C.F.R. § 2510.3-102(a)(1) (defining “assets of\nthe plan” to include amounts “that a participant or beneficiary\npays to an employer . . . [or] that a participant has withheld\nfrom his wages by an employer” (emphasis added)); Advisory\nOp. No. 92-24A, 1992 WL 337539, at *2 (describing\n“participant contributions” in the context of “plans whose\nbenefits are paid as needed solely from the general assets of\nthe employer maintaining the plan”).\n\n This case, however, does not involve a self-funded plan.\nInstead, as plaintiffs allege, all of the plans sold by\ndefendants were “fully-insured health insurance policies.”\nUnder a “fully insured” plan, the insurance company “acts as\na direct insurer; it guarantees a fixed monthly premium for\n12 months and bears the financial risk of paying claims.” N.\nCypress Med. Ctr., 898 F.3d at 468. Premiums paid under a\nfully insured plan are not held in trust; rather, they are “fixed\nfee[s]” paid in exchange for the insurance company\n“assum[ing] the financial risk of providing the benefits\npromised.” Pegram, 530 U.S. at 218–19. And as explained\nabove, once defendants collected those fees, neither plaintiffs\nnor their employees maintained any sort of property interest\nin them. Accordingly, defendants did not exercise control\n\f THE DEPOT V. CARING FOR MONTANANS 23\n\nover plan assets when charging or spending the allegedly\nexcessive premiums.11\n\n Because defendants were not exercising a fiduciary\nfunction when taking “the action subject to complaint,”\nPegram, 530 U.S. at 226, we affirm the district court’s\ndismissal of plaintiffs’ breach of fiduciary duty claim under\n29 U.S.C. § 1132(a)(2).\n\nB. Prohibited Transaction Claim\n\n Next, we consider plaintiffs’ prohibited transaction claim,\nfor which they purport to seek “appropriate equitable relief”\nunder 29 U.S.C. § 1132(a)(3). We conclude that the relief\nplaintiffs seek is not equitable and accordingly affirm the\ndistrict court’s dismissal of plaintiffs’ prohibited transaction\nclaim.\n\n Under ERISA’s prohibited transaction provisions, “[a]\nfiduciary with respect to a plan shall not cause the plan to\nengage in a transaction” with “a party in interest” for the\n“furnishing of . . . services” if “more than reasonable\ncompensation is paid therefor.” 29 U.S.C. §§ 1106(a)(1)(C),\n\n\n\n\n 11\n In light of our holding, we express no opinion on the district court’s\nconclusion that the premium payments were not plan assets pursuant to\nERISA’s “guaranteed benefit policy” provision, 29 U.S.C. § 1101(b)(2).\n\f24 THE DEPOT V. CARING FOR MONTANANS\n\n1108(b)(2).12 ERISA provides a cause of action for\nremedying prohibited transactions:\n\n A civil action may be brought . . . by a\n participant, beneficiary, or fiduciary (A) to\n enjoin any act or practice which violates any\n provision of [ERISA Title I] or the terms of\n the plan, or (B) to obtain other appropriate\n equitable relief (i) to redress such violations\n or (ii) to enforce any provisions of [ERISA\n Title I] or the terms of the plan.\n\nId. § 1132(a)(3). Because § 1132(a)(3) “makes no mention\nat all of which parties may be proper defendants,” a party in\ninterest—including a non-fiduciary third party—may be sued\nunder this provision for its participation in a prohibited\ntransaction. Harris Tr. & Sav. Bank v. Salomon Smith\nBarney, Inc., 530 U.S. 238, 246, 249–51 (2000); see\nLandwehr v. DuPree, 72 F.3d 726, 734 (9th Cir. 1995). And\neven though the plan fiduciary is the one who “cause[d] the\nplan to engage in [the prohibited] transaction,” 29 U.S.C.\n§ 1106(a)(1), the “culpable fiduciary” may still bring suit\nagainst “the arguably less culpable” party in interest because\n“the purpose of the action is to recover money or other\n\n\n 12\n The text of these sections creates the prohibited transaction as\nfollows: “Except as provided in section 1108 . . . [a] fiduciary with respect\nto a plan shall not cause the plan to engage in a transaction, if he knows\nor should know that such transaction constitutes a direct or indirect . . .\nfurnishing of . . . services . . . between the plan and a party in interest.”\n29 U.S.C. § 1106(a)(1)(C). “The prohibitions provided in section 1106 of\nthis title shall not apply to . . . [c]ontracting or making reasonable\narrangements with a party in interest for . . . services necessary for the\nestablishment or operation of the plan, if no more than reasonable\ncompensation is paid therefor.” Id. § 1108(b)(2).\n\f THE DEPOT V. CARING FOR MONTANANS 25\n\nproperty for the [plan beneficiaries],” Harris Tr., 530 U.S. at\n252 (quoting Restatement (Second) of Trusts § 294 cmt. c, at\n70 (1957)).13 Thus, a plan fiduciary may (1) seek an\ninjunction or “other appropriate equitable relief” (2) against\na “party in interest” (3) for participating in a transaction for\nservices for which “more than reasonable compensation is\npaid.”\n\n The parties and the district court all agree that the second\nand third components are satisfied in this case. Each\ndefendant is a “party in interest”—which ERISA defines as\n“a person providing services to [a] plan,” 29 U.S.C.\n§ 1002(14)(B)—because they provide underwriting and\nclaim-adjudication services to the plans. And the alleged\nconduct in this case—imposing unreasonable charges for\nkickbacks and unrequested benefits—is arguably a prohibited\ntransaction for “services” between plan fiduciaries (plaintiffs)\nand parties in interest (defendants) for which “more than\nreasonable compensation is paid.” Id. §§ 1106(a)(1)(C),\n1108(b)(2). Because an injunction is not at issue here, the\nonly dispute is whether plaintiffs are seeking “appropriate\nequitable relief” under § 1132(a)(3).\n\n\n 13\n In Harris Trust, the fiduciaries of a pension plan sued Salomon\nSmith Barney (“Salomon”), a firm that provided broker-dealer and trading\nservices to the plan. 530 U.S. at 242. While the plan was receiving these\nservices, the plan also purchased worthless investments from Salomon at\nthe direction of an investment manager that exercised “discretion over a\nportion of the plan’s assets” and was therefore also a plan fiduciary. Id.\nat 242–43. The remaining fiduciaries sued Salomon under § 1132(a)(3)\nas a non-fiduciary party in interest, contending that the investment\nmanager, acting as a fiduciary, caused the plan to engage in a prohibited\ntransaction between the plan and a party in interest for the sale of property\nin exchange for plan assets. Id. at 243 (citing 29 U.S.C. § 1106(a)(1)(A),\n(D)).\n\f26 THE DEPOT V. CARING FOR MONTANANS\n\n In a series of decisions, the Supreme Court has explained\nthat the phrase “appropriate equitable relief” in § 1132(a)(3)\n“is limited to those categories of relief that were typically\navailable in equity during the days of the divided bench\n(meaning, the period before 1938 when courts of law and\nequity were separate).” Montanile v. Bd. of Trs. of Nat’l\nElevator Indus. Health Benefit Plan, 136 S. Ct. 651, 657\n(2016) (internal quotation marks omitted); see US Airways,\nInc. v. McCutchen, 569 U.S. 88, 94–95 (2013); Sereboff v.\nMid Atl. Med. Servs., Inc., 547 U.S. 356, 361–62 (2006);\nGreat-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.\n204, 210 (2002); Mertens v. Hewitt Assocs., 508 U.S. 248,\n256 (1993). As a result, a plaintiff may not use § 1132(a)(3)\nto seek any “form of legal relief,” such as “money damages.”\nGreat-West, 534 U.S. at 210 (internal alteration omitted)\n(quoting Mertens, 508 U.S. at 255). To qualify as “equitable\nrelief,” both “(1) the basis for the plaintiff’s claim and (2) the\nnature of the underlying remedies sought” must be equitable\nrather than legal. Montanile, 136 S. Ct. at 657 (internal\nalterations omitted) (quoting Sereboff, 547 U.S. at 363).\n\n Even if we assume that the basis for plaintiffs’ claim in\nthis case is equitable,14 the nature of the underlying remedies\nsought by plaintiffs in their complaint is not equitable.\nPlaintiffs seek a judgment to obtain money from defendants,\nand “[a]lmost invariably suits seeking . . . to compel the\ndefendant to pay a sum of money to the plaintiff are suits for\n\n 14\n Although we are skeptical that the basis for plaintiffs’ claim is\nequitable, defendants did not dispute that issue in the district court and\nraise it for the first time on appeal. We thus do not address that question\nand instead apply our “‘general rule’ against entertaining arguments on\nappeal that were not presented or developed before the district court.”\nRichards v. Ernst & Young, LLP, 744 F.3d 1072, 1075 (9th Cir. 2013)\n(citation omitted).\n\f THE DEPOT V. CARING FOR MONTANANS 27\n\n‘money damages’”—the “classic form of legal relief.”\nGreat-West, 534 U.S. at 210 (citation and internal alteration\nomitted). Although plaintiffs attempt to characterize the\nrelief they seek as equitable by labeling it “restitution” and\n“disgorgement,” we must “look to the ‘substance of the\nremedy sought rather than the label placed on that remedy.’”\nMathews v. Chevron Corp., 362 F.3d 1172, 1185 (9th Cir.\n2004) (citation and internal alteration omitted). We conclude\nthat, notwithstanding the labels, plaintiffs’ requested relief is\nnot equitable in nature.\n\n 1. Restitution\n\n The restitution plaintiffs seek is not equitable. The\nSupreme Court has drawn a “fine distinction between\nrestitution at law and restitution in equity.” Great-West,\n534 U.S. at 214. A plaintiff seeks “restitution at law” when\nthe plaintiff cannot “assert title or right to possession of\nparticular property” but instead seeks to “impose personal\nliability on the defendant” as a means of “recovering money\nto pay for some benefit the defendant . . . received from [the\nplaintiff].” Id. at 213–14 (quoting 1 Dan B. Dobbs, Law of\nRemedies § 4.2(1), at 571 (2d ed. 1993) (“Dobbs”)). By\ncontrast, a plaintiff seeks “restitution in equity, ordinarily in\nthe form of a constructive trust or an equitable lien, where\nmoney or property identified as belonging in good conscience\nto the plaintiff [can] clearly be traced to particular funds or\nproperty in the defendant’s possession.” Id. at 213 (citing 1\nDobbs § 4.3(1), at 587–88); see 2 Dobbs § 6.1(3), at 12–13.\n\n The Court has illustrated this distinction in several cases\ninvolving ERISA plans claiming entitlement to a settlement\nfund obtained by plan beneficiaries. In Great-West, the Court\nconcluded that the plan was seeking legal restitution because\n\f28 THE DEPOT V. CARING FOR MONTANANS\n\nthe specifically identified fund was not in the defendants’\npossession. 534 U.S. at 214. By contrast, in Sereboff, the\nCourt concluded that the plan was seeking equitable\nrestitution because the plan “sought ‘specifically identifiable’\nfunds that were ‘within the possession and control’” of the\ndefendants—not recovery from the defendants’ “assets\ngenerally.” 547 U.S. at 362–63 (citation omitted). And in\nMontanile, the Court faced the problem of a fund that,\nalthough specifically identified at one time, had been\ndissipated by the defendant on nontraceable items, leaving the\nplan to seek recovery “out of the defendant’s general assets.”\n136 S. Ct. at 658. Observing the rule that equitable restitution\nmust seek to recover “specifically identified funds that\nremain in the defendant’s possession or . . . traceable items\nthat the defendant purchased with the funds (e.g., identifiable\nproperty like a car),” the Court held that seeking recovery out\nof “the defendant’s general assets” due to dissipation of the\nfunds “on nontraceable items (like food or travel)” amounts\nto “a legal remedy, not an equitable one.” Id.\n\n In this case, the district court concluded that the nature of\nthe remedy sought by plaintiffs is not equitable, reasoning\nthat, under Montanile, “a party cannot recover in equity\nunless the funds have been maintained in a segregated\naccount.” Montanile, however, concerned dissipation and\ntracing, not segregation. The Court noted this distinction in\ndicta, observing that at least in some instances, if a defendant\n“commingl[es] a specifically identified fund . . . with a\ndifferent fund,” the “commingling allow[s] the plaintiff to\nrecover the amount of the lien from the entire pot of money.”\nMontanile, 136 S. Ct. at 661. And as plaintiffs point out, we\nhave, in another context, permitted recovery out of\ncommingled funds under the “lowest intermediate balance”\ndoctrine, which “evolved from equitable principles of trusts”:\n\f THE DEPOT V. CARING FOR MONTANANS 29\n\n “Where a wrongdoer mingles another’s\n money with his own, from which commingled\n account withdrawals are from time to time\n made, there is a presumption of law that the\n sums first withdrawn were moneys of the\n tortfeasor.” . . . If the amount on deposit is\n depleted below the amount of the trust,\n however, the amount withdrawn is treated as\n lost, and subsequent deposits do not replenish\n the trust. Thus, the beneficiary is entitled to\n the lowest intermediate balance between the\n date of the commingling and the date of\n payment.\n\nIn re R & T Roofing Structures & Commercial Framing, Inc.,\n887 F.2d 981, 987 (9th Cir. 1989) (internal alterations\nomitted) (quoting Republic Supply Co. v. Richfield Oil Co.,\n79 F.2d 375, 378 (9th Cir. 1935)); see also Schuyler v.\nLittlefield, 232 U.S. 707, 710 (1914) (“[W]here one has\ndeposited trust funds in his individual bank account, and the\nmingled fund is at any time wholly depleted, the trust fund is\nthereby dissipated, and cannot be treated as reappearing in\nsums subsequently deposited to the credit of the same\naccount.”). Thus, plaintiffs argue, when a specific fund is\ncommingled with other funds in a general account, restitution\nis available out of the general account as long as the general\naccount balance does not dip below the amount of the\nwrongfully held money.\n\n We need not decide whether this proposition is correct\nbecause, even assuming it is, “the facts and allegations\nsupporting that proposition [do not] appear in [plaintiffs’]\ncomplaint.” Amgen, 136 S. Ct. at 760. First, plaintiffs have\nnot identified a “specific fund” to which they are entitled. As\n\f30 THE DEPOT V. CARING FOR MONTANANS\n\nMontanile explains, “[e]quitable remedies ‘are, as a general\nrule, directed against some specific thing,’” not “a sum of\nmoney generally.” 136 S. Ct. at 658 (citation omitted).\nPlaintiffs, however, seek to recover not a specific thing but\ninstead some unidentified portion of the many premium\npayments that exceeded “reasonable compensation.” The\npremium surcharges plaintiffs seek to recover “never existed\nas a distinct object or fund”; rather, they reflect “a specific\namount of money encompassed within a particular\nfund”—the total premiums paid to defendants. Bilyeu v.\nMorgan Stanley Long Term Disability Plan, 683 F.3d 1083,\n1093 (9th Cir. 2012). And even if the amount of the\novercharges is measurable or otherwise identifiable, “[i]t is\nthe fund, not its size, that must be identifiable.” Cent. States,\nSe. & Sw. Areas Health & Welfare Fund v. First Agency, Inc.,\n756 F.3d 954, 960 (6th Cir. 2014); see Bilyeu, 683 F.3d at\n1093 (distinguishing between a specific “amount of money”\nand a specific “fund”). Indeed, a judgment in plaintiffs’ favor\nwould have no connection to any particular fund whatsoever.\nDefendants would simply be required to pay a certain amount\nof money, and they could “satisfy that obligation by dipping\ninto any pot” they like. First Agency, 756 F.3d at 960. That\nis restitution at law, not equity.\n\n Second, the complaint never mentions the existence of a\ngeneral account in which the ill-gotten funds (i.e., the\npremium surcharges) were commingled, such that the product\nof those funds would be traceable. Again, Montanile is clear:\n“[W]here a person wrongfully disposed of the property of\nanother but the property cannot be traced into any product,\nthe other cannot enforce a constructive trust or lien upon any\npart of the wrongdoer’s property.” 136 S. Ct. at 659\n(emphasis and internal alterations omitted) (quoting\nRestatement of Restitution § 215(1), at 866 (1936)); see also\n\f THE DEPOT V. CARING FOR MONTANANS 31\n\nGeorge G. Bogert et al., The Law of Trusts and Trustees\n§ 921 (2d rev. ed. 1995) (“Bogert”) (explaining that\nrestitution of “trust property or its product” is generally\nunavailable “where the proof of the beneficiary-claimant\nmerely shows the receipt of trust property by the defendant\nand makes no case as to its subsequent history or its existence\namong the present assets of the defendant”).\n\n Nor do plaintiffs allege that defendants’ account balance\nremained above the surcharge amounts for purposes of their\n“lowest intermediate balance” theory. Indeed, a\n“consequence of the lowest balance rule is that, unless there\nis evidence to show the amount of the low balance, the\nplaintiff may recover nothing at all, on the view that without\nsuch evidence, the plaintiff’s funds have not been identified\nin the account.” 2 Dobbs § 6.1(4), at 22. Here, the gravamen\nof plaintiffs’ complaint is that defendants spent the\nsurcharges on kickbacks and unwanted insurance products.\nThat leaves plaintiffs to simply declare in their briefs that it\nis “almost inconceivable” that defendants did not place the\nsurcharges into a general account before spending them, and\nthat the general account still exists today such that the\nsurcharges would be traceable. But as the complaint itself\nexplains, BCBSMT has substantially reorganized, changed its\nname to CFM, sold its health insurance business, and at some\npoint has donated or will donate its assets to public charity.\nThus, even if defendants placed surcharges collected between\n2006 and 2014 into a general account, we certainly find it at\nleast “conceivable” that the account no longer exists.\nBecause “our review is limited to the contents of the\ncomplaint,” Allen, 911 F.2d at 372, we decline to entertain\nplaintiffs’ unpleaded theory on appeal.\n\f32 THE DEPOT V. CARING FOR MONTANANS\n\n 2. Disgorgement\n\n Plaintiffs also purport to seek disgorgement, which they\ndefine as a money judgment equivalent in value to ill-gotten\nassets that were dissipated on non-traceable items. This\ncharacterization of disgorgement—which runs headlong into\nMontanile’s refusal to permit recovery of assets that have\nbeen dissipated “on nontraceable items,” 136 S. Ct. at\n658—is unavailing.\n\n “Disgorgement” is simply a form of “[r]estitution\nmeasured by the defendant’s wrongful gain” rather than by\nthe plaintiff’s loss, and is often described as “an ‘accounting\nfor profits.’” Restatement (Third) of Restitution and Unjust\nEnrichment § 51 cmt. a, at 204 (2011); see Edmonson,\n725 F.3d at 419 (“[D]isgorgement and accounting for profits\nare essentially the same remedy.”); 1 Dobbs § 4.3(5), at 610\n(“[A]ccounting for profits . . . forces the [defendant] to\ndisgorge gains received from improper use of the plaintiff’s\nproperty or entitlements.”). And as the Supreme Court\nexplained in Great-West, “an accounting for profits” is an\nadditional remedy—available when the plaintiff “is entitled\nto a constructive trust on particular property held by the\ndefendant”—that allows the plaintiff to “recover profits\nproduced by the defendant’s use of that property, even if [the\nplaintiff] cannot identify a particular res containing the profits\nsought to be recovered.” 534 U.S. at 214 n.2 (citing 1 Dobbs\n§§ 4.3(1), 4.3(5), at 588, 608). That is also how the Court\ndescribed “disgorgement” in Harris Trust—a remedy\navailable to recover the “proceeds” from disposing of\nparticular property as well as “profits derived” from the illicit\nuse of that property. 530 U.S. at 250. Given the absence of\n\f THE DEPOT V. CARING FOR MONTANANS 33\n\nany particular property in this case, plaintiffs’ request for\ndisgorgement is not equitable in nature.15\n\n Plaintiffs try to erase this particularity requirement by\nciting several trust law treatises that explain that trust\nbeneficiaries could sue a third-party transferee in a court of\nequity to obtain a “money judgment” when the ill-gotten\nassets cannot be traced. See, e.g., Bogert § 868; 4 Austin\nWakeman Scott & William Franklin Fratcher, The Law of\nTrusts §§ 291.1, 291.2, at 78–79 (4th ed. 1989); Restatement\n(Second) of Trusts § 291 cmt. e, at 59. Indeed, plaintiffs\nproclaim, courts of equity had “exclusive jurisdiction” in this\ncontext, and an “exclusively equitable remedy is, by\ndefinition, a typically equitable remedy.” But the Supreme\nCourt rejected this reasoning in Mertens, explaining that\nalthough “courts of equity had exclusive jurisdiction over\nvirtually all actions by beneficiaries for breach of\ntrust”—including actions for monetary relief “against third\npersons who knowingly participated in the trustee’s\nbreach”—many of those actions sought what were in effect\n“‘legal remedies’ granted by an equity court.” 508 U.S. at\n\n 15\n Under traditional rules of equity, an accounting for profits may be\navailable in the absence of a constructive trust over specifically\nidentifiable property if the defendant owed a fiduciary duty to the plaintiff\nand breached that duty. See Parke v. First Reliance Standard Life Ins.\nCo., 368 F.3d 999, 1008–09 (8th Cir. 2004); cf. CIGNA Corp. v. Amara,\n563 U.S. 421, 441–42 (2011) (describing a “surcharge,” which is an\nequitable remedy “in the form of monetary ‘compensation’ for a loss\nresulting from a trustee’s breach of duty, or to prevent the trustee’s unjust\nenrichment” (citation omitted)). But fiduciary status is “[t]he important\ningredient.” 1 Dobbs § 4.3(5), at 611 n.16; see CIGNA, 563 U.S. at 442\n(“[T]he fact that the defendant . . . is analogous to a trustee makes a\ncritical difference.”). And for purposes of plaintiffs’ prohibited\ntransaction claim, defendants are not fiduciaries but instead non-fiduciary\nthird parties.\n\f34 THE DEPOT V. CARING FOR MONTANANS\n\n256. The phrase “equitable relief” in ERISA does not mean\n“whatever relief a common-law court of equity could\nprovide.” Id. at 257. Rather, it means relief that was\n“typically available in equity (such as injunction, mandamus,\nand restitution, but not compensatory damages).” Id. at 256.\nAnd as explained above, equitable restitution (including its\ndisgorgement variant) generally requires specifically\nidentifiable property or its traceable proceeds.\n\n Plaintiffs also point to Harris Trust, but nothing in Harris\nTrust alters that conclusion. As the Court explained in that\ncase, beneficiaries can recover in equity from a third-party\ntransferee only because “equity impresse[d] a constructive\ntrust on the property” upon its transfer. Harris Tr., 530 U.S.\nat 250 (quoting Moore v. Crawford, 130 U.S. 122, 128\n(1889)). And a “constructive trust . . . may be imposed only\nwhere the plaintiff’s funds are themselves located and\nidentified or where they are traced into other funds or\nproperty.” 2 Dobbs § 6.1(3), at 12–13 (footnotes omitted).\nIndeed, “the nature of the relief” that the Court “described in\nHarris Trust [was] a claim to specific property (or its\nproceeds) held by the defendant.” Great-West, 534 U.S. at\n215 (emphasis added). Because plaintiffs have not identified\nany specific property from which proceeds or profits derived,\nthey cannot recover the derivative remedy of disgorgement.\n\n In sum, plaintiffs are not seeking “appropriate equitable\nrelief” under 29 U.S.C. § 1132(a)(3). We thus affirm the\ndistrict court’s dismissal of plaintiffs’ prohibited transaction\nclaim.\n\f THE DEPOT V. CARING FOR MONTANANS 35\n\n IV. STATE-LAW CLAIMS\n\n We now turn to plaintiffs’ claims under state law for\nfraudulent inducement, constructive fraud, negligent\nmisrepresentation, unjust enrichment, and unfair trade\npractices under the Montana Consumer Protection Act. Each\nof these claims is based on defendants’ alleged\nmisrepresentations to plaintiffs that the premiums charged\nreflected the actual medical premium amount. See generally\nMorrow v. Bank of Am., N.A., 324 P.3d 1167, 1180–85\n(Mont. 2014) (describing the elements of fraud, constructive\nfraud, negligent misrepresentation, and unfair trade\npractices). The district court dismissed these claims after\nconcluding that they are preempted by ERISA and that\nplaintiffs’ fraud allegations are not pled with sufficient\nparticularity for purposes of Federal Rule of Civil Procedure\n9(b). Plaintiffs challenge both conclusions.\n\nA. Preemption\n\n “[T]wo strands of ERISA preemption” are relevant here:\n(1) “express” preemption under 29 U.S.C. § 1144(a); and\n(2) “conflict” preemption based on 29 U.S.C. § 1132(a).\nPaulsen v. CNF Inc., 559 F.3d 1061, 1081 (9th Cir. 2009)\n(citation omitted). Addressing each strand, we conclude that\nERISA does not preempt plaintiffs’ state-law claims.\n\n 1. Express Preemption\n\n ERISA expressly preempts “any and all State laws insofar\nas they may now or hereafter relate to any employee benefit\nplan.” 29 U.S.C. § 1144(a). The text of this provision—and\nin particular, the phrase “relate to”—is broad. So broad, in\nfact, that the Supreme Court has rejected an “‘uncritical\n\f36 THE DEPOT V. CARING FOR MONTANANS\n\nliteralism’ in applying” it given its potentially never-ending\nreach. Gobeille, 136 S. Ct. at 943 (quoting N.Y. State\nConference of Blue Cross & Blue Shield Plans v. Travelers\nIns. Co., 514 U.S. 645, 656 (1995)). To provide some\n“workable standards” for determining the scope of § 1144(a),\nthe Court has identified “two categories” of state-law claims\nthat “relate to” an ERISA plan—claims that have a “reference\nto” an ERISA plan, and claims that have “an impermissible\n‘connection with’” an ERISA plan. Id. (citations omitted);\nsee Or. Teamster Emp’rs Tr. v. Hillsboro Garbage Disposal,\nInc., 800 F.3d 1151, 1155 (9th Cir. 2015) (“A [state] law\nclaim ‘relates to’ an ERISA plan ‘if it has a connection with\nor reference to such a plan.’” (citation omitted)). These two\ncategories operate separately. See Cal. Div. of Labor\nStandards Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S.\n316, 324–25 (1997).\n\n We first address the “reference to” category. A state-law\nclaim has a “‘reference to’ an ERISA plan” if it “is premised\non the existence of an ERISA plan” or if “the existence of the\nplan is essential to the claim’s survival.” Hillsboro Garbage,\n800 F.3d at 1155–56 (quoting Providence Health Plan v.\nMcDowell, 385 F.3d 1168, 1172 (9th Cir. 2004)). In this\ncase, plaintiffs’ state-law claims are not premised or\ndependent on the existence of an ERISA plan. Indeed, as\nexplained above, the alleged misrepresentations occurred\nprior to any plan’s existence. We thus have little difficulty\nconcluding that plaintiffs’ state-law claims do not have an\nimpermissible “reference to” an ERISA plan.\n\n We reach the same conclusion with respect to the\n“connection with” prong. A claim has “an impermissible\n‘connection with’” an ERISA plan if it “‘governs a central\nmatter of plan administration’ or ‘interferes with nationally\n\f THE DEPOT V. CARING FOR MONTANANS 37\n\nuniform plan administration,’” Gobeille, 136 S. Ct. at 943\n(internal alteration omitted) (quoting Egelhoff v. Egelhoff,\n532 U.S. 141, 148 (2001)), or if it “bears on an ERISA-\nregulated relationship,” Hillsboro Garbage, 800 F.3d at 1155\n(quoting Paulsen, 559 F.3d at 1082). We look to “the\nobjectives of the ERISA statute as a guide,” bearing in mind\na “‘starting presumption that Congress d[id] not intend to\nsupplant’ . . . state laws regulating a subject of traditional\nstate power” unless that power amounts to “a direct\nregulation of a fundamental ERISA function.” Gobeille,\n136 S. Ct. at 943, 946 (quoting Travelers, 514 U.S. at 654).\n\n Preventing “sellers of goods and services, including\nbenefit plans, from misrepresenting the contents of their\nwares” is certainly an area of traditional state regulation that\n“is ‘quite remote from the areas with which ERISA is\nexpressly concerned—reporting, disclosure, fiduciary\nresponsibility, and the like.’” Wilson v. Zoellner, 114 F.3d\n713, 720 (8th Cir. 1997) (quoting Dillingham, 519 U.S. at\n330); see Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 84–85 (3d\nCir. 2012) (collecting cases holding that ERISA does not\nexpressly preempt state-law claims against an insurer “who\nmakes fraudulent or misleading statements to induce\nparticipation in an ERISA plan”). Moreover, plaintiffs’ state-\nlaw claims do not “bear[ ] on an ERISA-regulated\nrelationship.” Rutledge v. Seyfarth, Shaw, Fairweather &\nGeraldson, 201 F.3d 1212, 1219 (9th Cir. 2000), amended,\n208 F.3d 1170 (9th Cir. 2000), abrogated in part on other\ngrounds by Davila, 542 U.S. 200. Although plaintiffs’\nprohibited transaction claim involves an ERISA-regulated\nrelationship (the relationship between a fiduciary and a party\nin interest), that relationship is unrelated to plaintiffs’ state-\nlaw claims, which focus on the misrepresentations made by\ndefendants while they were operating “just like any other\n\f38 THE DEPOT V. CARING FOR MONTANANS\n\ncommercial entity.” Paulsen, 559 F.3d at 1083 (citation\nomitted).\n\n Defendants argue that our decision in Rutledge compels\na contrary conclusion. In Rutledge, we concluded that\nERISA preempted a plan participant’s state-law claims\nagainst a law firm that allegedly overcharged the plan for\nlegal services. 201 F.3d at 1222. We explained that “a core\nfactor leading to the conclusion that a state law claim is\npreempted is that the claim bears on an ERISA-regulated\nrelationship,” id. at 1219, and one such “ERISA-governed\nrelationship” is the relationship between plan participants and\nparties in interest “in the respect [t]here at issue—excessive\nfees,” id. at 1221–22 & n.12. We thus held that “state-law\nclaims against a non-fiduciary for prohibited transactions\n‘relate to the administration of a plan covered by ERISA,’”\nand that the allegation of excessive fees in that case was a\n“prohibited transaction governed by ERISA.” Id. at 1221–22\n(quoting Concha v. London, 62 F.3d 1493, 1504 (9th Cir.\n1995)).\n\n This case differs from Rutledge, however, because\nplaintiffs’ state-law claims are premised on defendants’\nmisrepresentations in negotiations, not prohibited\ntransactions. Indeed, plaintiffs’ state-law claims could\nsucceed even if the premiums that defendants charged\nconstituted “reasonable compensation” under ERISA,\n29 U.S.C. § 1108(b)(2), because the claims allege that\ndefendants misrepresented the composition of the premiums\nin a way that induced plaintiffs to subscribe to Chamber\nChoices plans. The actual amount of the premiums—and\nwhether that amount was “reasonable compensation” under\nERISA—is irrelevant to plaintiffs’ state-law claims. And the\nmisrepresentations occurred, at least initially, before plaintiffs\n\f THE DEPOT V. CARING FOR MONTANANS 39\n\never agreed to subscribe to a plan. The claims thus do not\n“bear[ ] on an ERISA-regulated relationship,” Rutledge,\n201 F.3d at 1219, because no such relationship existed when\nthe misrepresentations were made. Plaintiffs’ state-law\nclaims are accordingly not expressly preempted by ERISA.\n\n 2. Conflict Preemption\n\n In addition to its express preemption provision, ERISA\narticulates “a comprehensive civil enforcement scheme” in\n29 U.S.C. § 1132(a) that is designed “to provide a uniform\nregulatory regime over employee benefit plans.” Davila,\n542 U.S. at 208 (quoting Pilot Life Ins. Co. v. Dedeaux, 481\nU.S. 41, 54 (1987)).16 As a result, “any state-law cause of\naction that duplicates, supplements, or supplants the ERISA\ncivil enforcement remedy conflicts with the clear\ncongressional intent to make the ERISA remedy exclusive”\nand is therefore barred by conflict preemption. Id. at 209.\nConflict preemption can bar a state-law claim “even if the\nelements of the state cause of action [do] not precisely\nduplicate the elements of an ERISA claim,” id. at 216, but a\nstate-law claim is not preempted if it reflects an “attempt to\nremedy [a] violation of a legal duty independent of ERISA,”\nid. at 214. State-law claims “are based on ‘other independent\nlegal duties’” when they “are in no way based on an\nobligation under an ERISA plan” and “would exist whether\nor not an ERISA plan existed.” Marin Gen. Hosp. v. Modesto\n\n\n 16\n The “possible claims” under 29 U.S.C. § 1132(a) are “(1) an action\nto recover benefits due under the plan; (2) an action for breach of fiduciary\nduties; and (3) a suit to enjoin violations of ERISA or the [p]lan, or to\nobtain other equitable relief” to redress ERISA or plan violations. Bast v.\nPrudential Ins. Co. of Am., 150 F.3d 1003, 1008 (9th Cir. 1998) (internal\ncitations omitted).\n\f40 THE DEPOT V. CARING FOR MONTANANS\n\n& Empire Traction Co., 581 F.3d 941, 950 (9th Cir. 2009)\n(internal alteration omitted) (quoting Davila, 542 U.S. at\n210).\n\n In this case, the duties implicated in plaintiffs’ state-law\nclaims do not derive from ERISA; indeed, ERISA does not\npurport to govern negotiations between insurance companies\nand employers. Each of the state-law claims arises from\ndefendants’ misrepresentations and the effect they had on\nplaintiffs’ decisions to subscribe to Chamber Choices plans.\nThe legal duties at issue in these state-law claims are\nindependent of the duties imposed by ERISA and would exist\nregardless of whether an ERISA plan existed. See Cotton,\n402 F.3d at 1290 (finding no conflict preemption where the\nplaintiffs sought “damages based on fraud in the sale of\ninsurance policies”). Put in the terms used by the district\ncourt, plaintiffs’ state-law claims are not “alternative\nenforcement mechanisms” to ERISA claims because ERISA\ndoes not have an enforcement mechanism that regulates\nmisrepresentations by insurance companies. Plaintiffs’ state-\nlaw claims are thus not barred by either express or conflict\npreemption.\n\nB. Rule 9(b) Particularity\n\n Finally, we turn to the district court’s conclusion that\nplaintiffs “have not met the heightened pleading standard\nrequired under Federal Rule of Civil Procedure 9(b) as to\ntheir allegations of fraud.” Rule 9(b)’s particularity\n\f THE DEPOT V. CARING FOR MONTANANS 41\n\nrequirement applies to plaintiffs’ claims of fraudulent\ninducement and constructive fraud.17\n\n Under Rule 9(b), a party “alleging fraud or mistake . . .\nmust state with particularity the circumstances constituting\nfraud or mistake.” Fed. R. Civ. P. 9(b). To satisfy Rule\n9(b)’s particularity requirement, the complaint must include\n“an account of the ‘time, place, and specific content of the\nfalse representations as well as the identities of the parties to\nthe misrepresentations.’” Swartz v. KPMG LLP, 476 F.3d\n756, 764 (9th Cir. 2007) (per curiam) (quoting Edwards v.\nMarin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)). In\nother words, the pleading “must ‘identify the who, what,\nwhen, where, and how of the misconduct charged, as well as\nwhat is false or misleading about the purportedly fraudulent\nstatement, and why it is false.’” Salameh v. Tarsadia Hotel,\n726 F.3d 1124, 1133 (9th Cir. 2013) (quoting United States\nex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d\n1047, 1055 (9th Cir. 2011)).\n\n\n 17\n We disagree with plaintiffs’ assertion that Rule 9(b) does not apply\nto their constructive fraud claim because Montana’s version of the rule\nwould not apply in state court. Rule 9(b)’s particularity requirement “is\na federally imposed rule” that applies “irrespective of whether the\nsubstantive law at issue is state or federal.” Kearns v. Ford Motor Co.,\n567 F.3d 1120, 1125 (9th Cir. 2009) (quoting Vess v. Ciba-Geigy Corp.\nUSA, 317 F.3d 1097, 1102–03 (9th Cir. 2003)); see id. (rejecting the\nargument “that Rule 9(b) does not apply to California’s consumer\nprotection statutes because California courts have not applied Rule 9(b)\n[to those statutes]”). State law is relevant only “to determine whether the\nelements of fraud have been pled sufficiently to state a cause of action.”\nId. (quoting Vess, 317 F.3d at 1103). And because plaintiffs rely on a\n“unified course of fraudulent conduct” as the basis of the constructive\nfraud claim, the claim is at a minimum “grounded in fraud” and therefore\n“must satisfy the particularity requirement of Rule 9(b).” Vess, 317 F.3d\nat 1103–04.\n\f42 THE DEPOT V. CARING FOR MONTANANS\n\n The complaint in this case alleges that defendants\nmisrepresented the basis of the premiums they charged. But\nthe complaint lacks sufficient detail with respect to the\n“who,” “when,” “where,” or “how.” Plaintiffs vaguely allege\nthat defendants made these misrepresentations “[i]n the\ncourse of marketing” the plans to plaintiffs over a period of\neight years—from 2006 to 2014. Plaintiffs do not allege the\ndetails of these misrepresentations, such as when defendants\nmade them, where or how defendants made them, to whom\nthey were made, or the specific contents of the\nmisrepresentations.18 See Concha, 62 F.3d at 1503 (“Rule\n9(b) . . . requires that plaintiffs specifically plead those facts\nsurrounding alleged acts of fraud to which they can\nreasonably be expected to have access.”). We therefore agree\nwith the district court that plaintiffs’ allegations do not state\nwith particularity the circumstances of the alleged fraud.\n\n Nevertheless, because we reverse the district court’s\nconclusion that plaintiffs’ state-law claims are preempted, we\nreverse the district court’s dismissal with prejudice of the\nstate-law claims so that plaintiffs may amend their complaint\nto state the fraud allegations with greater particularity. See\nUnited States ex rel. Swoben v. United Healthcare Ins. Co.,\n848 F.3d 1161, 1167 (9th Cir. 2016). We note, however, that\nbecause we affirm the dismissal of plaintiffs’ ERISA claims,\nthe district court is also free on remand to decline to exercise\nsupplemental jurisdiction over the state-law claims and allow\nplaintiffs to bring them in state court. See Sanford v.\n\n\n 18\n Defendants also argue that the complaint impermissibly lumps\ntogether HCSC and CFM as “BCBSMT.” This argument lacks merit.\nThe complaint specifically explains that “BCBSMT” refers to CFM for\nconduct occurring before July 2013, and to HCSC for conduct occurring\nafter July 2013.\n\f THE DEPOT V. CARING FOR MONTANANS 43\n\nMemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010)\n(discussing supplemental jurisdiction under 28 U.S.C.\n§ 1367(c)(3)).\n\n V. CONCLUSION\n\n “[R]educed to the size of a pea, this case is really about\nclaims of fraud and misrepresentation in the sale of some\n[health] insurance policies.” Cotton, 402 F.3d at 1279.\nERISA does not regulate such conduct, which means that\nplaintiffs’ ERISA claims, and defendants’ ERISA preemption\ndefense, fail. We accordingly AFFIRM the district court’s\njudgment with respect to plaintiffs’ ERISA claims,\nREVERSE the district court’s judgment with respect to\nplaintiffs’ state-law claims, and REMAND for further\nproceedings consistent with this opinion. Each party shall\nbear its own costs on appeal.\n\n AFFIRMED IN PART, REVERSED IN PART, and\nREMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365100/", "author_raw": "BYBEE, Circuit Judge:"}]}	WILLIAM A FLETCHER	JAY S BYBEE	LARRY A BURNS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587847/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,848		Eeoc v. Global Horizons, Inc	2019-02-06	16-35528	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ronald M. Gould and Paul J. Watford, Circuit Judges, and Barbara Jacobs Rothstein,* District Judge.", "parties": "", "opinions": [{"author": "WATFORD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n U.S. EQUAL EMPLOYMENT No. 16-35528\n OPPORTUNITY COMMISSION,\n Plaintiff-Appellant, D.C. No.\n 2:11-cv-03045-\n v. EFS\n\n GLOBAL HORIZONS, INC., DBA\n Global Horizons Manpower, Inc.; OPINION\n GREEN ACRE FARMS, INC.; VALLEY\n FRUIT ORCHARDS, LLC; DOES, 1–10\n Inclusive,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Eastern District of Washington\n Edward F. Shea, Senior District Judge, Presiding\n\n Argued and Submitted June 13, 2018\n Seattle, Washington\n\n Filed February 6, 2019\n\n Before: Ronald M. Gould and Paul J. Watford, Circuit\n Judges, and Barbara Jacobs Rothstein,* District Judge.\n\n Opinion by Judge Watford\n\n \n The Honorable Barbara Jacobs Rothstein, United States District\nJudge for the Western District of Washington, sitting by designation.\n\f2 EEOC V. GLOBAL HORIZONS\n\n SUMMARY \n\n\n Equal Employment Opportunity Commission\n\n The panel reversed the district court’s orders in an\nenforcement action brought by the Equal Employment\nOpportunity Commission (“EEOC”) under Title VII of the\nCivil Rights Act of 1964 on behalf of Thai workers alleging\ndiscrimination charges against Green Acre Farms and Valley\nFruit Orchards (the “Growers”).\n\n The Growers retained Global Horizons, Inc., a labor\ncontractor, to obtain temporary workers for their orchards.\nGlobal Horizons recruited workers from Thailand and\nbrought them to the United States under the H-2A guest\nworker program. The district court entered a default\njudgment against Global Horizons after it discontinued its\ndefense in the action; this case focuses solely on the liability\nof the Growers.\n\n The district court granted in part the Growers’ Fed. R.\nCiv. P. 12(b)(6) motions to dismiss. The district court drew\na distinction between orchard-related matters (managing,\nsupervising, and disciplining the Thai workers at the\norchards) and non-orchard-related matters (housing,\nfeeding, transporting, and paying the workers).\n\n The panel held that the district court erred in holding that\nthe Growers could not be held liable under Title VII for non-\norchard-related matters.\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f EEOC V. GLOBAL HORIZONS 3\n\n Deciding in the first instance what test to employ for\ndetermining whether an entity is a joint employer under Title\nVII, the panel held that the common-law agency test should\nbe applied. Under the common-law test, the principle\nguidepost is the element of control. The panel rejected the\nchief alternative for analyzing employment relationships in\nthe Title VII context: the economic-reality test. The panel\nheld that the district court correctly determined that the\nEEOC’s allegations were sufficient to establish that the\nGrowers and Global Horizons were joint employers as to\norchard-related matters. Applying the common-law agency\ntest, the panel concluded that the EEOC adequately alleged\nthat the Growers’ employment relationship with the Thai\nworkers also subsumed non-orchard-related matters.\n\n The panel held that the EEOC plausibly alleged Green\nAcre’s liability as a joint employer for the discriminatory\nconduct of Global Horizons. The panel further held that the\nEEOC plausibly alleged Green Acre’s liability under Title\nVII for discrimination relating to non-orchard-related\nmatters. The panel also held that the EEOC’s allegations\nwere thinner as they related to the liability of Valley Fruit.\nThe panel reversed the district court’s dismissal of the\nEEOC’s allegations against Valley Fruit with respect to non-\norchard-related matters; and directed on remand that the\nEEOC be permitted to amend its complaint as to Valley\nFruit’s liability for non-orchard-related matters. The panel\nfurther directed that the district court should then reconsider\nthe disparate treatment claim (and the related pattern-or-\npractice claim) in light of the EEOC’s allegations regarding\nboth orchard-related and non-orchard-related matters.\n\n The panel reversed the district court’s order denying the\nEEOC’s motions to compel discovery regarding the\nGrowers’ liability with respect to non-orchard-related\n\f4 EEOC V. GLOBAL HORIZONS\n\nmatters. The panel also reversed the district court’s order\ngranting the Growers’ motion for summary judgment.\nFinally, the panel reversed the district court’s order granting\nthe Growers’ motions for attorneys’ fees because the\nGrowers were no longer prevailing parties.\n\n\n COUNSEL\n\nGail S. Coleman (argued), Elizabeth E. Theran, and Jeremy\nD. Horowitz, Attorneys; Lorraine C. Davis, Assistant\nGeneral Counsel; Jennifer S. Goldstein, Associate General\nCounsel; James L. Lee, Deputy General Counsel; Equal\nEmployment Opportunity Commission, Office of General\nCounsel, Washington, D.C.; for Plaintiff-Appellant.\n\nJusto G. Gonzalez (argued), Lance A. Pelletier, and Brendan\nV. Monahan, Stokes Lawrence, P.S., Seattle, Washington,\nfor Defendants-Appellees.\n\n\n OPINION\n\nWATFORD, Circuit Judge:\n\n Green Acre Farms and Valley Fruit Orchards (the\nGrowers) are fruit growers in the State of Washington. In\n2003, the Growers experienced labor shortages and entered\ninto agreements with Global Horizons, Inc., a labor\ncontractor, to obtain temporary workers for their orchards.\nWith the Growers’ approval, Global Horizons recruited\nworkers from Thailand and brought them to the United\nStates under the H-2A guest worker program, which allows\nagricultural employers to hire foreign workers for temporary\nand seasonal work.\n\f EEOC V. GLOBAL HORIZONS 5\n\n In 2006, two of the Thai workers filed discrimination\ncharges against the Growers and Global Horizons with the\nEqual Employment Opportunity Commission (EEOC).\nAfter an investigation, the EEOC brought this action under\nTitle VII of the Civil Rights Act of 1964. The EEOC\nalleged, among other things, that the Growers and Global\nHorizons subjected the Thai workers to poor working\nconditions, substandard living conditions, and unsafe\ntransportation on the basis of their race and national origin.\nThe district court entered a default judgment against Global\nHorizons after it discontinued its defense in the action;\nGlobal Horizons was financially insolvent by the time the\nEEOC brought suit. This case thus focuses solely on the\nliability of the Growers.\n\n Title VII imposes liability for discrimination on\n“employer[s].” 42 U.S.C. § 2000e-2(a). The threshold\nquestion raised in this appeal is whether the Growers and\nGlobal Horizons were joint employers of the Thai workers\nfor Title VII purposes.\n\n At the motion to dismiss stage, the district court divided\nthe EEOC’s allegations into those involving “orchard-\nrelated matters” (referring to working conditions at the\norchards) and those involving “non-orchard-related matters”\n(referring to housing, meals, transportation, and payment of\nwages). The district court then held that the EEOC had\nplausibly alleged the Growers were joint employers of the\nThai workers as to orchard-related matters, but not as to non-\norchard-related matters. The court accordingly dismissed all\nallegations against the Growers relating to non-orchard-\nrelated matters.\n\n Following that decision, the district court (1) granted in\npart the Growers’ motions to dismiss; (2) denied in part the\nEEOC’s motions to compel discovery; (3) granted the\n\f6 EEOC V. GLOBAL HORIZONS\n\nGrowers’ motion for summary judgment; and (4) granted the\nGrowers’ motions for attorney’s fees on the ground that the\nEEOC’s claims were frivolous and without foundation from\nthe outset. The EEOC challenges each of these orders on\nappeal.\n\n We reverse the district court’s dismissal of the EEOC’s\nallegations regarding non-orchard-related matters, which in\nturn affects each of the other decisions under review. All\nparties agree that the Growers and Global Horizons were\njoint employers of the Thai workers with respect to orchard-\nrelated matters. Thus, the salient question before us is\nwhether the EEOC plausibly alleged that the Growers were\nalso joint employers with respect to non-orchard-related\nmatters. We conclude that the EEOC has so alleged. We\nalso conclude that the EEOC’s allegations state a plausible\nbasis for holding Green Acre liable for discrimination\nrelating to non-orchard-related matters, and that the district\ncourt should have granted the EEOC leave to amend its\ncomplaint regarding Valley Fruit’s liability with respect to\nsuch matters. Those conclusions require us to reverse each\nof the four rulings the EEOC challenges.\n\n I\n\n In 2003, Green Acre and Valley Fruit began to\nexperience labor shortages and contracted with Global\nHorizons to obtain temporary workers for their orchards.\nEach Grower separately entered into labor agreements with\nGlobal Horizons covering the periods February–November\n2004 and January–November 2005. Pursuant to the\ncontracts, Global Horizons agreed to recruit foreign workers\nfor the Growers through the H-2A guest worker program.\n\n The H-2A program, which is administered by the\nDepartment of Labor, allows employers to hire foreign\n\f EEOC V. GLOBAL HORIZONS 7\n\nworkers for agricultural labor on a temporary or seasonal\nbasis. See 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Congress\ndesigned the program to “balance two competing interests:\nto assure employers an adequate labor force on the one hand\nand to protect the jobs of citizens on the other.” Orengo\nCaraballo v. Reich, 11 F.3d 186, 190 (D.C. Cir. 1993)\n(alteration and internal quotation marks omitted).\n\n The H-2A program imposes a number of requirements\non employers reflecting these competing interests. For\nexample, in order to participate in the program, an employer\nmust first obtain a labor certification from the Secretary of\nLabor by showing:\n\n (A) there are not sufficient workers who are\n able, willing, and qualified, and who will be\n available at the time and place needed, to\n perform the labor or services involved in the\n petition, and\n\n (B) the employment of the alien in such labor\n or services will not adversely affect the\n wages and working conditions of workers in\n the United States similarly employed.\n\n8 U.S.C. § 1188(a)(1). In its certification application, the\nemployer must specify the number of foreign workers that it\nneeds to offset the shortage of American agricultural\nworkers. 20 C.F.R. § 655.101(b)(1) (2004). 1 The employer\n\n 1\n Throughout this opinion, we refer to the version of the Department\nof Labor’s regulations in effect in 2004 and 2005, when the Growers\ncontracted with Global Horizons to hire Thai workers through the H-2A\nprogram. The regulations have been amended and renumbered several\ntimes since then.\n\f8 EEOC V. GLOBAL HORIZONS\n\nmust also include a copy of its job offer in the application.\nId. The purpose of requiring the job offer is to ensure that\nthe employer is offering sufficient pay and benefits to H-2A\nguest workers so that the employment of foreign workers\ndoes not adversely affect domestic workers. § 655.102(b).\n\n An employer is required to provide H-2A workers with\ncertain non-wage benefits as part of the job offer, most\nnotably housing, meals, and transportation. The Department\nof Labor’s regulations spell out in some detail the nature of\nthese benefits. For instance, the employer must provide H-\n2A workers with housing and transportation to and from the\nworksite, free of charge. § 655.102(b)(1), (b)(5)(iii). The\nemployer must also ensure that the workers’ housing and\ntransportation satisfy all applicable health and safety\nregulations. Id. In addition, the regulations require the\nemployer to provide H-2A workers with three meals a day at\nnominal cost or access to free cooking facilities that the\nworkers can use to prepare their own meals.\n§ 655.102(b)(4). Furthermore, the regulations require the\nemployer to pay H-2A workers at least twice per month at a\nspecific wage rate set by the Department of Labor.\n§ 655.102(b)(9)–(10).\n\n Under their labor contracts, the Growers and Global\nHorizons agreed to share responsibility for managing the\nThai workers and for fulfilling the various H-2A\nrequirements. At the orchards, the Growers agreed to\nprovide general management and oversight, which included\ndetermining the number of workers needed for each task,\nsetting quotas for work output, and inspecting the quality of\nthe work. Global Horizons likewise agreed to provide day-\nto-day supervision over the workers. As to the H-2A\nrequirements, Global Horizons agreed to provide the Thai\nworkers with housing and transportation and to pay them the\n\f EEOC V. GLOBAL HORIZONS 9\n\nappropriate wages. The contracts were silent as to which\nparty bore responsibility for providing the workers with\nmeals or access to cooking facilities, but Global Horizons\nagreed to provide the workers with any legally required\n“ancillary support, equipment, supplies, transportation and\nfacilities,” which encompassed meals or cooking facilities.\nIn exchange, the Growers agreed to compensate Global\nHorizons for the Thai workers’ wages and benefits and to\npay Global Horizons an additional fee for its services.\n\n According to the allegations in the EEOC’s complaint,\nthe Growers and Global Horizons engaged in a\ndiscriminatory and exploitative scheme to recruit the H-2A\nworkers. They allegedly targeted impoverished Thai\nnationals to work at the orchards in the belief that such\nworkers would be more compliant and less likely to abscond\nthan workers of other nationalities. Global Horizons sent\nrecruiters to Thailand to lure potential workers with false\npromises of high wages and steady employment. Global\nHorizons also charged the workers exorbitant recruitment\nfees for the opportunity to work in the United States. To pay\nthe fees, many of the Thai workers were forced to mortgage\ntheir homes and land, sometimes along with the homes and\nland of their relatives, and to incur other substantial debts.\n\n With respect to orchard-related matters, the Growers and\nGlobal Horizons allegedly subjected the Thai workers to\npoor working conditions at the orchards. The Thai workers\nwere mostly assigned to pick fruit and trim trees, and the\nGrowers set strict quotas for the amount of fruit to be picked.\nAccording to the EEOC, supervisors pressured the Thai\nworkers to meet the quotas by verbally harassing them,\ncalling them degrading names, and threatening them with\npay cuts, termination, and deportation. Moreover, Global\nHorizons did not provide the Thai workers with the high\n\f10 EEOC V. GLOBAL HORIZONS\n\nwages or steady employment that it had promised. Global\nHorizons often delayed paying the workers or paid them too\nlittle, and there were weeks during which the workers had no\nwork at all. The Growers and Global Horizons allegedly\ndiscriminated against the Thai workers and treated them\ndifferently from the Mexican workers who also worked at\nthe orchards. According to the EEOC, the Growers and\nGlobal Horizons assigned the Thai workers more demanding\nwork, gave them fewer breaks, forced them to work in\nextreme heat and in the rain, and gave priority to Mexican\nworkers when there was a shortage of work.\n\n With respect to non-orchard-related matters, Global\nHorizons allegedly subjected the Thai workers to\ndiscriminatory treatment. According to the EEOC’s\ncomplaint, Global Horizons provided the workers with\novercrowded and nearly uninhabitable housing. The\nhousing lacked adequate kitchen, bathroom, and laundry\nfacilities, and sometimes lacked even running water or\nelectricity. Some units were infested with mice, flies, and\ncockroaches. These conditions forced the Thai workers to\ntake desperate measures. Some urinated and defecated\noutside because there were not enough bathrooms. Some\nslept on the floor because there were not enough beds.\nOthers dug through the trash to look for beds, mattresses,\nand kitchen equipment. Rather than provide meals for the\nworkers, Global Horizons chose to provide them with access\nto cooking facilities, at which the workers were expected to\nprepare their own meals. But the Thai workers often did not\nhave enough to eat because the kitchen facilities and\nequipment were inadequate, and Global Horizons’\nemployees did not take the workers to the grocery store\nfrequently enough. As a consequence, some workers\nresorted to hunting rabbits or birds for food. Global\nHorizons also exposed the workers to unsafe conditions\n\f EEOC V. GLOBAL HORIZONS 11\n\nwhen transporting them between their housing and the\norchards. The buses were so crowded that some of the\nworkers had to sit in the middle aisle of the bus, on water\ncoolers, or on each other’s laps. According to the EEOC, the\nGrowers and Global Horizons did not subject Mexican\nworkers to similarly appalling conditions.\n\n Global Horizons allegedly took various measures to\nensure that the Thai workers did not escape from (or\ncomplain about) their dire circumstances. Global Horizons\nexercised control over the workers in part by taking\nadvantage of their crippling debts. Many of the workers had\nborrowed heavily to pay Global Horizons’ recruitment fees,\nand their only opportunity to pay off those debts was to work\nin the United States. Exploiting that vulnerability, Global\nHorizons threatened to send the workers back to Thailand if\nthey ever complained about their poor working and living\nconditions. As added pressure, Global Horizons confiscated\nthe workers’ passports and employed guards to monitor the\nworkers so that they could not physically escape from the\norchards.\n\n In 2006, two of the Thai workers filed charges of\ndiscrimination with the EEOC. They claimed that the\nGrowers and Global Horizons engaged in ongoing\ndiscrimination, harassment, and retaliation on the basis of\nnational origin. The EEOC conducted an investigation from\n2006 to 2010 and found reasonable cause to believe that the\ncharges were true. After unsuccessful conciliation efforts,\nthe EEOC filed the present action on behalf of the Thai\nworkers. In the operative First Amended Complaint, the\nEEOC asserts four claims for relief under Title VII of the\nCivil Rights Act of 1964: (1) disparate treatment based on\nrace or national origin; (2) hostile work environment and\nconstructive discharge; (3) retaliation; and (4) related\n\f12 EEOC V. GLOBAL HORIZONS\n\npattern-or-practice claims. 42 U.S.C. §§ 2000e-2(a), 2000e-\n3(a).\n\n The district court granted in part the Growers’ motions\nto dismiss the action under Federal Rule of Civil Procedure\n12(b)(6). In the district court’s view, the EEOC had not\nplausibly alleged that the Growers were joint employers of\nthe Thai workers as to all employment matters. The court\ndrew a distinction between orchard-related matters\n(managing, supervising, and disciplining the Thai workers at\nthe orchards) and non-orchard-related matters (housing,\nfeeding, transporting, and paying the workers). The court\nconcluded that the Growers had outsourced the non-orchard-\nrelated matters to Global Horizons, and that the Growers’\nemployment relationship with the Thai workers therefore\nextended only to orchard-related matters. Based on that\nconclusion, the court dismissed all allegations against the\nGrowers relating to non-orchard-related matters. The court\nthen decided that the remaining allegations were insufficient\nto sustain the disparate treatment claim, the retaliation claim\nagainst Valley Fruit, and the related pattern-or-practice\nclaims. Later, in accordance with its earlier rulings, the court\ndenied the EEOC’s motions to compel discovery to the\nextent that those motions sought information related to non-\norchard-related matters.\n\n After discovery concluded, the district court granted\nsummary judgment in favor of the Growers on the EEOC’s\nremaining Title VII claims: the hostile work environment\nand constructive discharge claim, the retaliation claim\nagainst Green Acre, and related pattern-or-practice claims.\nHaving barred discovery for non-orchard-related matters,\nthe court reviewed the claims only in light of evidence\nregarding orchard-related matters. Based on that limited\nreview, the court concluded that no reasonable trier of fact\n\f EEOC V. GLOBAL HORIZONS 13\n\ncould find that the Growers had discriminated against the\nThai workers in violation of Title VII.\n\n The district court then granted the Growers’ motions for\nattorney’s fees. The court held that the EEOC had not\nconducted an adequate investigation before filing suit and\nhad pursued frivolous claims and remedies as a result. In\nparticular, the court faulted the EEOC for predicating its\nclaims on the theory that the Growers could be held liable as\njoint employers as to non-orchard-related matters.\n\n After entry of final judgment, the EEOC filed this timely\nappeal.\n\n II\n\n Our analysis begins and largely ends with the district\ncourt’s holding that the Growers could not be held liable\nunder Title VII for non-orchard-related matters. That\nholding, which we conclude below was erroneous, provided\nthe foundation for each of the orders the EEOC challenges\non appeal.\n\n A\n\n Under Title VII, an entity can be held liable for\ndiscrimination if it is an “employer” of the plaintiff.\n42 U.S.C. § 2000e-2(a). It is now well-settled that an\nindividual can have more than one employer for Title VII\npurposes. See, e.g., Frey v. Hotel Coleman, 903 F.3d 671,\n676–77 (7th Cir. 2018); Al-Saffy v. Vilsack, 827 F.3d 85, 96\n(D.C. Cir. 2016); Faush v. Tuesday Morning, Inc., 808 F.3d\n208, 215 (3d Cir. 2015); Butler v. Drive Automotive\nIndustries of America, Inc., 793 F.3d 404, 408–10 (4th Cir.\n2015). The law recognizes that two entities may\nsimultaneously share control over the terms and conditions\n\f14 EEOC V. GLOBAL HORIZONS\n\nof employment, such that both should be liable for\ndiscrimination relating to those terms and conditions. See\nButler, 793 F.3d at 408–10. The two entities in such\ncircumstances are deemed to be joint employers of the\nemployees in question.\n\n Our court has not yet adopted a test for determining when\nan entity may be held liable as a joint employer under Title\nVII. The EEOC correctly points out that we addressed this\nissue once before in EEOC v. Pacific Maritime Association,\n351 F.3d 1270 (9th Cir. 2003), but the panel opinion in that\ncase was vacated upon the grant of rehearing en banc.\n367 F.3d 1167 (9th Cir. 2004). The parties voluntarily\ndismissed the case before rehearing occurred, so our court\nnever issued an opinion sitting en banc.\n\n We are therefore required to decide in the first instance\nwhat test to adopt for determining whether an entity is a joint\nemployer. Title VII itself does not shed much light on the\nanswer. Under the statute, the term “employer” is defined\n(subject to exclusions not relevant here) as “a person\nengaged in an industry affecting commerce who has fifteen\nor more employees . . . and any agent of such a person.”\n42 U.S.C. § 2000e(b). The term “employee” is defined\n(again subject to exclusions not relevant here) as “an\nindividual employed by an employer.” § 2000e(f).\n\n The Supreme Court has held that, when confronted with\n“completely circular” definitions like these, courts should\nuse common-law agency principles to analyze the existence\nof an employer-employee relationship. Nationwide Mutual\nInsurance Co. v. Darden, 503 U.S. 318, 323 (1992). As the\nCourt has noted, a lack of congressional guidance “often\nreflects an expectation that courts will look to the common\nlaw to fill gaps in statutory text, particularly when an\nundefined term has a settled meaning at common law.”\n\f EEOC V. GLOBAL HORIZONS 15\n\nClackamas Gastroenterology Associates, P.C. v. Wells,\n538 U.S. 440, 447 (2003). The Court has relied on common-\nlaw agency principles to flesh out the meaning of\n“employer” and “employee” when construing other statutes\nthat contain the same circular definitions as those found in\nTitle VII. See id. at 444–45 (Americans with Disabilities\nAct); Darden, 503 U.S. at 322–23 (Employee Retirement\nIncome Security Act). We conclude that the common-law\nagency test should be applied in the Title VII context as well.\n\n Under the common-law test, “the principal guidepost” is\nthe element of control—that is, “the extent of control that\none may exercise over the details of the work of the other.”\nClackamas, 538 U.S. at 448 (internal quotation marks\nomitted). The Court has provided a non-exhaustive list of\nfactors to consider when analyzing whether the requisite\ncontrol exists:\n\n the skill required; the source of the\n instrumentalities and tools; the location of the\n work; the duration of the relationship\n between the parties; whether the hiring party\n has the right to assign additional projects to\n the hired party; the extent of the hired party’s\n discretion over when and how long to work;\n the method of payment; the hired party’s role\n in hiring and paying assistants; whether the\n work is part of the regular business of the\n hiring party; whether the hiring party is in\n business; the provision of employee benefits;\n and the tax treatment of the hired party.\n\nDarden, 503 U.S. at 323–24 (internal quotation marks\nomitted). There is “no shorthand formula” for determining\nwhether an employment relationship exists, so “all of the\n\f16 EEOC V. GLOBAL HORIZONS\n\nincidents of the relationship must be assessed and weighed\nwith no one factor being decisive.” Id. at 324 (internal\nquotation marks omitted).\n\n We reject the chief alternative for analyzing employment\nrelationships in the Title VII context: the economic-reality\ntest. That test focuses on whether workers are economically\ndependent on the alleged joint employer. Torres-Lopez v.\nMay, 111 F.3d 633, 641 (9th Cir. 1997). Like the common-\nlaw agency test, the economic-reality test provides a non-\nexhaustive list of factors courts should consider. Id. at 639–\n40. However, the economic-reality test was developed in the\ncontext of the Fair Labor Standards Act (FLSA) and the\nMigrant and Seasonal Agricultural Worker Protection Act\n(AWPA), two statutes that differ from Title VII in material\nrespects. Unlike Title VII, both the FLSA and the AWPA\nprovide broad definitions of “employ” that expand the scope\nof employment relationships beyond the common-law\nunderstanding. 29 U.S.C. §§ 203(g), 1802(5); see also\nDarden, 503 U.S. at 326. In addition, the Department of\nLabor has promulgated regulations under the FLSA and the\nAWPA to guide the analysis for joint employment. See\n29 C.F.R. §§ 500.20(h)(5), 791.2. The economic-reality test\nis based on the broad statutory definitions found in the FLSA\nand the AWPA and the regulatory guidance described above.\nSee Torres-Lopez, 111 F.3d at 639–40; Bonnette v.\nCalifornia Health and Welfare Agency, 704 F.2d 1465,\n1469–70 (9th Cir. 1983). Because those features are not\npresent in the Title VII scheme, we see no basis for\nsupplanting the common-law test with the economic-reality\ntest.\n\n We acknowledge that there may be little functional\ndifference among the common-law agency test, the\neconomic-reality test, and a third test that blends elements of\n\f EEOC V. GLOBAL HORIZONS 17\n\nthe first two (the so-called “hybrid” test). See Murray v.\nPrincipal Financial Group, Inc., 613 F.3d 943, 945 (9th Cir.\n2010). All three are fact-intensive tests that will usually\nproduce the same outcome in a joint-employment analysis.\nBut Supreme Court precedent dictates that the common-law\ntest governs when a statute does not meaningfully define\nterms like “employer” and “employee.” See Clackamas,\n538 U.S. at 444–45; Darden, 503 U.S. at 322–23. Thus, we\nconclude that the common-law agency test is the most\nappropriate one for Title VII purposes.\n\n B\n\n The district court correctly determined that the EEOC’s\nallegations are sufficient to establish that the Growers and\nGlobal Horizons were joint employers as to orchard-related\nmatters. The Growers do not contest that determination on\nappeal. The only issue is whether the EEOC plausibly\nalleged that the Growers’ employment relationship with the\nThai workers also subsumed non-orchard-related matters.\nApplying the common-law agency test, we conclude that the\nEEOC adequately alleged that element of its claims.\n\n In a typical employment relationship, the employer does\nnot have control over non-workplace matters such as\nhousing, meals, and transportation. Employees are usually\nexpected to find their own housing, provide for their own\nmeals, and arrange for their own transportation to and from\nwork. Those matters ordinarily do not constitute terms and\nconditions of employment, so if an employee experiences\ndiscrimination in obtaining adequate housing, for example,\nthe employer would not be liable for failing to stop that\ndiscrimination.\n\n The H-2A program establishes a different relationship\nbetween an employer and the foreign guest workers it\n\f18 EEOC V. GLOBAL HORIZONS\n\nemploys. As explained above, the H-2A regulations place\non the shoulders of an “employer” (a defined term to which\nwe will return in a moment) the legal obligation to provide\nforeign guest workers with housing, transportation, and\neither low-priced meals or access to cooking facilities.\n20 C.F.R. § 655.102(b)(1), (4), (5)(iii). Under the\nregulations, these benefits constitute “material terms and\nconditions of employment,” which must be stated in the job\noffer provided to all potential H-2A workers. § 655.100(b).\nThe H-2A program thus expands the employment\nrelationship between an H-2A “employer” and its workers to\nencompass housing, meals, and transportation, even though\nthose matters would ordinarily fall outside the realm of the\nemployer’s responsibility.\n\n The Growers contend that they were not “employers” of\nthe Thai workers with respect to non-orchard-related\nmatters. In their view, only Global Horizons was the\nemployer because it was the entity that recruited the workers\nfrom Thailand, brought them to the United States, and\ncontractually agreed to be responsible for paying their wages\nand providing the benefits required under the H-2A program.\n\n The plain language of the H-2A regulations, at least as\nthey stood in 2004–2005, compels us to reject the Growers’\nargument. The regulations during that time period defined\nthe term “employer” as an entity “which suffers or permits a\nperson to work and (1) which has a location within the\nUnited States to which U.S. workers may be referred for\nemployment, and which proposes to employ workers at a\nplace within the United States and (2) which has an employer\nrelationship with respect to employees under this subpart as\nindicated by the fact that it may hire, pay, fire, supervise or\notherwise control the work of any such employee.”\n§ 655.100(b). The regulations also state that the\n\f EEOC V. GLOBAL HORIZONS 19\n\n“employers” who may utilize the H-2A program normally\nshare certain characteristics, first among them “[a] fixed-site\nfarm, ranch, or similar establishment.” § 655.93(a)(1).\n\n Under these provisions, the Growers qualify as\n“employers.” The Growers each own a fixed-site farm, and\nthey meet both prongs of the regulatory definition of\n“employer.” Each has a location in the United States at\nwhich it proposed to employ foreign guest workers, and\nneither Grower disputes that it had an employment\nrelationship with those workers by virtue of its ability to\n“supervise or otherwise control the work” of the Thai\nworkers. The Growers’ status as “employers” of the Thai\nworkers is further confirmed by the fact that, at the time\nrelevant here, foreign guest workers admitted under the H-\n2A program could work only at the farm or other fixed-site\nlocation designated in the certification order issued by the\nDepartment of Labor. § 655.106(c)(1). The regulations\nsensibly placed the obligation for providing housing, meals,\ntransportation, and wages on the owner of the farm\ndesignated in the certification order, since the foreign\nworkers were admitted to the United States on a temporary\nbasis solely to render services for the owner’s benefit.\n\n The terms of the contracts between the Growers and\nGlobal Horizons do not change this analysis. The contracts,\nit is true, delegated to Global Horizons responsibility for\nproviding housing, access to cooking facilities,\ntransportation, and wages for the Thai workers. But that\ncontractual delegation did not absolve the Growers of their\nlegal obligations as “employers” under the H-2A\nregulations. Those obligations were imposed on the\nGrowers as a matter of law. The Growers were free to\ncontract with another entity to help discharge their legal\n\f20 EEOC V. GLOBAL HORIZONS\n\nobligations, but responsibility for compliance ultimately\nrested on the Growers’ shoulders.\n\n With this regulatory backdrop in mind, we must\ndetermine whether the EEOC has plausibly alleged that the\nGrowers were joint employers under Title VII as to non-\norchard-related matters. Most of the factors we would\ntypically consider in applying the common-law agency test,\nsee Darden, 503 U.S. at 323–24, do not apply here because\nwe are not dealing with matters ordinarily encompassed\nwithin an employment relationship. But the common law’s\n“principal guidepost”—the element of control—is\ndeterminative. Clackamas, 538 U.S. at 448. As just\ndiscussed, pursuant to the 2004–2005 H-2A regulations, the\nGrowers were legally obligated to provide the Thai workers\nwith housing, meals, transportation, and wages. The\nGrowers possessed ultimate authority over those matters,\neven though they delegated responsibility to Global\nHorizons and agreed to compensate Global Horizons for its\nservices. If the Growers were dissatisfied with the quality of\nGlobal Horizons’ services, they could have demanded\nchanges, withheld payment, or ended the contract with\nGlobal Horizons altogether. The power to control the\nmanner in which housing, meals, transportation, and wages\nwere provided to the Thai workers, even if never exercised,\nis sufficient to render the Growers joint employers as to non-\norchard-related matters. See Browning-Ferris Industries of\nCalifornia, Inc. v. NLRB, __ F.3d __, 2018 WL 6816542, at\n10–11 (D.C. Cir. Dec. 28, 2018).\n\n C\n\n Although the EEOC has plausibly alleged that the\nGrowers were joint employers as to non-orchard-related\nmatters, that does not end our analysis. The EEOC alleged\nthat Global Horizons, rather than the Growers, was the entity\n\f EEOC V. GLOBAL HORIZONS 21\n\ndirectly responsible for engaging in discriminatory conduct\nas to non-orchard-related matters.\n\n As our sister circuits have explained, even if a joint-\nemployment relationship exists, one joint employer is not\nautomatically liable for the actions of the other. See, e.g.,\nBurton v. Freescale Semiconductor, Inc., 798 F.3d 222, 228–\n29 (5th Cir. 2015); Whitaker v. Milwaukee County, 772 F.3d\n802, 811–12 (7th Cir. 2014). Liability may be imposed for\na co-employer’s discriminatory conduct only if the\ndefendant employer knew or should have known about the\nother employer’s conduct and “failed to undertake prompt\ncorrective measures within its control.” EEOC, Notice No.\n915.002, Enforcement Guidance: Application of EEO Laws\nto Contingent Workers Placed by Temporary Employment\nAgencies and Other Staffing Firms, 1997 WL 33159161, at\n*11 (Dec. 3, 1997). We have employed that same\nnegligence standard in an analogous setting, involving an\nemployer’s liability for the discriminatory conduct of third\nparties in the workplace. See, e.g., Freitag v. Ayers, 468 F.3d\n528, 538 (9th Cir. 2006) (subjecting Department of\nCorrections to liability for prisoners’ sexual harassment of\nfemale guards); Little v. Windermere Relocation, Inc.,\n301 F.3d 958, 968 (9th Cir. 2002) (subjecting employer to\nliability for client’s rape of employee). We agree with the\nFifth and Seventh Circuits that this standard should govern\nin the joint-employment context as well. See Burton,\n798 F.3d at 228–29; Whitaker, 772 F.3d at 811–12.\n\n The EEOC has plausibly alleged Green Acre’s liability\nas a joint employer for the discriminatory conduct of Global\nHorizons. In its complaint, the EEOC alleged that some of\nthe Thai workers complained directly to Green Acre\npersonnel, including its co-owner, about their abysmal living\nconditions, unsafe transportation, and missing or late wages.\n\f22 EEOC V. GLOBAL HORIZONS\n\nAccording to the EEOC, the Thai workers told Green Acre’s\nemployees that similarly situated Mexican workers were not\nsubject to the same substandard conditions. These\nallegations give rise to the plausible inference that Green\nAcre knew or should have known about Global Horizons’\ndiscriminatory conduct relating to non-orchard-related\nmatters. As explained above, the EEOC’s allegations\nestablish that Green Acre had ultimate control over those\nmatters and thus could have taken corrective action to stop\nthe discrimination. According to the EEOC’s complaint,\nGreen Acre failed to take any such action. Accordingly, the\nEEOC has plausibly alleged Green Acre’s liability under\nTitle VII for discrimination relating to non-orchard-related\nmatters.\n\n The EEOC’s allegations are thinner as they relate to the\nliability of Valley Fruit. As with Green Acre, the EEOC\nplausibly alleged that Valley Fruit had ultimate control over\nnon-orchard-related matters and failed to take appropriate\ncorrective action to stop Global Horizons’ discriminatory\nconduct. But the complaint does not adequately allege that\nValley Fruit knew or should have known about that conduct,\na necessary condition to trigger its obligation to take prompt\ncorrective action. The complaint alleges only that state and\nfederal authorities were investigating Global Horizons for\nproviding substandard housing and inadequate wages during\nthe time period in question here. The complaint does not\nallege that Valley Fruit ever became aware of these\ninvestigations, nor provide a plausible basis for inferring that\nknowledge of the investigations would have alerted Valley\nFruit to the fact that Global Horizons was allegedly\ndiscriminating against the Thai workers on the basis of race\nor national origin.\n\f EEOC V. GLOBAL HORIZONS 23\n\n Nevertheless, we cannot affirm the district court’s\ndismissal of the EEOC’s allegations against Valley Fruit\nwith respect to non-orchard-related matters. The district\ncourt did not predicate dismissal of those allegations on the\nground that they failed to raise a plausible inference that\nValley Fruit knew or should have known about Global\nHorizons’ discriminatory conduct. It instead dismissed\nthose allegations on the ground that Valley Fruit could not\nbe found liable as a matter of law for non-orchard-related\nmatters. We have now reversed that ruling, and on remand\nthe EEOC should be permitted an opportunity to amend its\ncomplaint with respect to Valley Fruit’s liability as to non-\norchard-related matters. From the record before us, it does\nnot appear as though amendment in that regard would be\nfutile. The record contains declarations from several Thai\nworkers stating that Valley Fruit personnel provided or\ndirectly observed the workers’ substandard living\nconditions, unsafe transportation, and inadequate wages.\nThese declarations suggest that, as with Green Acre, Valley\nFruit knew or should have known that the Thai workers were\nbeing treated less favorably than the Mexican workers.\n\n III\n\n In light of the discussion above, we reverse each of the\norders challenged on appeal. First, we reverse the district\ncourt’s order granting in part the Growers’ motions to\ndismiss. The court erred by dismissing the EEOC’s\ndisparate treatment claim (and the related pattern-or-practice\nclaim) on the ground that the Growers were not joint\nemployers of the Thai workers as to non-orchard-related\nmatters. (The EEOC does not challenge the dismissal of its\nretaliation claim or the related pattern-or-practice claim.)\nOn remand, the district court is instructed to grant the EEOC\nleave to amend its complaint with respect to Valley Fruit’s\n\f24 EEOC V. GLOBAL HORIZONS\n\nliability as to non-orchard-related matters. The court should\nthen reconsider the disparate treatment claim (and the related\npattern-or-practice claim) in light of the EEOC’s allegations\nregarding both orchard-related and non-orchard-related\nmatters.\n\n Second, we reverse the district court’s order denying the\nEEOC’s motions to compel discovery regarding the\nGrowers’ liability with respect to non-orchard-related\nmatters. The court’s order was predicated on the incorrect\npremise that the Growers could not be held liable for non-\norchard-related matters as a matter of law.\n\n Third, we reverse the district court’s order granting the\nGrowers’ motion for summary judgment. At that stage, the\ncourt reviewed the EEOC’s remaining Title VII claims only\nin light of the evidence regarding orchard-related matters,\nafter having cut off discovery for all non-orchard-related\nmatters. On remand, following appropriate discovery, the\ncourt is instructed to reconsider the EEOC’s claims in light\nof evidence regarding both orchard-related and non-orchard-\nrelated matters.\n\n Finally, we reverse the district court’s order granting the\nGrowers’ motions for attorney’s fees, as the Growers are no\nlonger prevailing parties. See 42 U.S.C. § 2000e-5(k).\nMoreover, the EEOC’s litigation position was not frivolous,\nunreasonable, or without foundation. See Christianburg\nGarment Co. v. EEOC, 434 U.S. 412, 421 (1978).\n\n REVERSED and REMANDED WITH\nINSTRUCTIONS.\n\n The Growers’ motion to supplement the record on\nappeal, filed April 4, 2017, is DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365101/", "author_raw": "WATFORD, Circuit Judge:"}]}	RONALD M GOULD	PAUL J WATFORD	BARBARA JACOBS ROTHSTEIN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587848/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,132		Lulac v. Andrew Wheeler	2019-02-06	17-71636	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS FEB 6 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nLEAGUE OF UNITED LATIN No. 17-71636\nAMERICAN CITIZENS; PESTICIDE\nACTION NETWORK NORTH AMERICA; ORDER\nNATURAL RESOURCES DEFENSE\nCOUNCIL; CALIFORNIA RURAL\nLEGAL ASSISTANCE FOUNDATION;\nFARMWORKERS ASSOCIATION OF\nFLORIDA; FARMWORKER JUSTICE\nGREENLATINOS; LABOR COUNCIL\nFOR LATIN AMERICAN\nADVANCEMENT; LEARNING\nDISABILITIES ASSOCIATION OF\nAMERICA; NATIONAL HISPANIC\nMEDICAL ASSOCIATION; PINEROS Y\nCAMPESINOS UNIDOS DEL\nNOROESTE; UNITED FARM WORKERS,\n\n Petitioners,\n\nSTATE OF NEW YORK; STATE OF\nMARYLAND; STATE OF VERMONT;\nSTATE OF WASHINGTON;\nCOMMONWEALTH OF\nMASSACHUSETTS; DISTRICT OF\nCOLUMBIA; STATE OF CALIFORNIA;\nSTATE OF HAWAII,\n\n Intervenors,\n\n v.\n\fANDREW WHEELER, Acting\nAdministrator of United States\nEnvironmental Protection Agency; U.S.\nENVIRONMENTAL PROTECTION\nAGENCY,\n\n Respondents.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\nand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\n\ncited as precedent by or to any court of the Ninth Circuit.\n\n Judges Berzon, Bybee and R. Nelson did not participate in the deliberations\n\nor vote in this case.\n\n\n\n\n 2", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365385/"}]}				0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588132/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
9,022,985	LEAGUE OF UNITED LATIN AMERICAN CITIZENS Pesticide Action Network North America Natural Resources Defense Council California Rural Legal Assistance Foundation Farmworkers Association of Florida Farmworker Justice GreenLatinos Labor Council for Latin American Advancement Learning Disabilities Association of America National Hispanic Medical Association Pineros Y Campesinos Unidos Del Noroeste United Farm Workers, State of New York State of Maryland State of Vermont State of Washington Commonwealth of Massachusetts District of Columbia State of California State of Hawaii, Intervenors v. Andrew WHEELER, Acting Administrator of United States Environmental Protection Agency U.S. Environmental Protection Agency	League of United Latin Am. Citizens v. Wheeler	2019-02-06	No. 17-71636	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Thomas", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016222/", "author_raw": ""}]}	THOMAS	THOMAS		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022985/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,429		United States v. Anthony Hill	2019-02-07	17-35719	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ferdinand F. Fernandez and Sandra S. Ikuta, Circuit Judges, and William K. Sessions III,* District Judge.", "parties": "", "opinions": [{"author": "IKUTA, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 17-35719\n Plaintiff-Appellee,\n D.C. Nos.\n v. 3:16-cv-01241-MO\n 3:12-cr-00276-MO-1\n ANTHONY JAMES HILL,\n Defendant-Appellant. OPINION\n\n\n Appeal from the United States District Court\n for the District of Oregon\n Michael W. Mosman, Chief Judge, Presiding\n\n Argued and Submitted November 7, 2018\n Portland, Oregon\n\n Filed February 7, 2019\n\n Before: Ferdinand F. Fernandez and Sandra S. Ikuta,\n Circuit Judges, and William K. Sessions III,* District\n Judge.\n\n Opinion by Judge Ikuta\n\n\n\n\n \n The Honorable William K. Sessions III, United States District Judge\nfor the District of Vermont, sitting by designation.\n\f2 UNITED STATES V. HILL\n\n SUMMARY\n\n\n 28 U.S.C. § 2255\n\n The panel affirmed the district court’s denial of Anthony\nJames Hill’s motion to vacate his sentence under 28 U.S.C.\n§ 2255 in light of Johnson v. United States, 135 S. Ct. 2551\n(2015).\n\n Hill claimed that Johnson established that he was\nineligible for a sentencing enhancement under the Armed\nCareer Criminal Act; and that but for alleged misinformation\nthat he was eligible for such an enhancement, he might not\nhave entered a plea agreement stating that he should be\nsentenced to between 57 and 71 months imprisonment, and\nthe district court, in turn, might have imposed a different\nsentence.\n\n The panel rejected Hill’s argument because he failed to\nshow that the alleged misinformation about his ACCA\neligibility was “demonstrably made the basis for the\nsentence.” The panel wrote that Hill’s potential eligibility for\nan ACCA enhancement was not before the sentencing court,\nand Hill’s personal concerns and motivation for entering into\nthe plea agreement do not suffice to establish that the district\ncourt made an error of constitutional magnitude.\n\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. HILL 3\n\n COUNSEL\n\nStephen R. Sady (argued), Chief Deputy Federal Public\nDefender; Elizabeth G. Daily, Assistant Federal Public\nDefender; Office of the Federal Public Defender, Portland,\nOregon; for Defendant-Appellant.\n\nSuzanne B. Miles (argued), Assistant United States Attorney;\nKelly A. Zusman, Appellate Chief; Billy J. Williams, United\nStates Attorney; United States Attorney’s Office, Portland,\nOregon; for Plaintiff-Appellee.\n\n\n OPINION\n\nIKUTA, Circuit Judge:\n\n Anthony James Hill appeals the district court’s denial of\nhis motion to vacate his sentence under 28 U.S.C. § 2255 in\nlight of Johnson v. United States, 135 S. Ct. 2551 (2015),\nwhich (he claims) established that he was ineligible for a\nsentencing enhancement under the Armed Career Criminal\nAct (ACCA). But for the alleged misinformation that Hill\nwas eligible for such a sentencing enhancement, Hill\ncontends, he might not have entered a plea agreement stating\nthat he should be sentenced to between 57 and 71 months\nimprisonment, and the district court, in turn, might have\nimposed a different sentence. We reject this argument,\nbecause Hill has failed to show that the alleged\nmisinformation about his ACCA eligibility was\n“demonstrably made the basis for the sentence.” United\nStates v. Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir.\n2009) (quoting United States v. Ibarra, 737 F.2d 825, 827\n(9th Cir. 1984)). The record establishes that Hill’s potential\n\f4 UNITED STATES V. HILL\n\neligibility for an ACCA enhancement was not before the\nsentencing court, and Hill’s personal concerns and motivation\nfor entering into the plea agreement do not suffice to establish\nthat the district court made an error of constitutional\nmagnitude. Therefore, we affirm.\n\n I\n\n In February 2012, Hill pointed a firearm at a woman\nduring a drunken argument and fled before the police could\narrive. After being arrested during a traffic stop a few months\nlater, Hill was subject to a one-count indictment for being a\nfelon in possession of a firearm in violation of 18 U.S.C.\n§ 922(g)(1). The indictment also alleged that Hill committed\nthis offense after having previously been convicted of five\nfelonies under Oregon law, in violation of 18 U.S.C.\n§ 924(e)(1). Section 924(e)(1) is part of ACCA, and\nincreases a defendant’s prison term to a minimum of 15 years\nif a defendant who violates § 922(g) has three previous\nconvictions for “a violent felony or serious drug offense.”\n18 U.S.C. § 924(e)(1). ACCA defines “violent felony” to\ninclude “any crime punishable by imprisonment for a term\nexceeding one year . . . that— . . . otherwise involves conduct\nthat presents a serious potential risk of physical injury to\nanother.” 18 U.S.C. § 924(e)(2)(B). This portion of the\ndefinition of “violent felony” is referred to as ACCA’s\n“residual clause.” Johnson, 135 S. Ct. at 2555–56.\n\n A\n\n After Hill was indicted, his counsel emailed the\nprosecuting attorney to discuss a plea agreement. In the\nemail, Hill’s counsel tried to persuade the prosecutor that\n“this is the type of case that can plea without ACC[A].”\n\f UNITED STATES V. HILL 5\n\nHill’s counsel stated he had sought the police reports for the\nprior offenses listed in the indictment, and according to the\ncounsel, “the crimes are fairly stale. The last one was from\n2001, two of the records from 1987 and 1989 have been\ndestroyed, and [the Portland Police Department] could not\nprovide one from 1992.” Morever, Hill’s counsel argued:\n“Unlike many ACC[A] predicates I’ve encountered, none of\nthe cases involve the use of weapons and those that involve\nthreat or intimidation are comical. In one case [Hill] tried to\nrob a store with his finger and in another the clerk was not\nintimidated at all.” Counsel went on to present background\ninformation that he believed mitigated Hill’s criminal record.\nAccordingly, Hill’s counsel requested that the prosecutor\n“dismiss the ACC[A] and allow Mr. Hill to plea to a\n57 month sentence.”\n\n The prosecutor’s response to this email is not in the\nrecord, but the parties agreed to a plea agreement which\nstated: “[p]ursuant to plea negotiations, the parties have\nagreed that the defendant will be permitted to plead guilty to\nthe charge of being a felon in possession of a firearm without\nthe Armed Career Criminal enhancement.” Accordingly,\n“[a]t the time of the change of plea hearing, the government\nwill ask the Court to strike the ‘Armed Career Criminal’\npenalty provision (§ 924(e)) in Count 1.” The section of the\nplea agreement entitled “Sentencing Recommendation after\napplying 3553(a) Factors” stated that, after considering those\nfactors and the advisory sentencing guideline range, “the\nparties agree that the defendant should be sentenced to\nbetween 57 and 71 months imprisonment, to be followed by\n3 years of supervised release.” It further stated that “[t]he\ngovernment believes, based upon the mitigation materials you\nhave provided, that a non-Armed Career Criminal sentence is\nappropriate,” but, “based upon the defendant’s lengthy\n\f6 UNITED STATES V. HILL\n\ncriminal history and the nature of this incident,” the\ngovernment nevertheless believed that “a 71 month sentence\nof imprisonment is warranted.” Hill was “free to seek a\nsentence of no less than 57 months imprisonment.” Finally,\nthe agreement specified that it was made pursuant to Rule\n11(c)(1)(B) of the Federal Rules of Criminal Procedure,\nmeaning that the Court was not bound to follow the parties’\nrecommended sentencing range. Fed. R. Crim. P.\n11(c)(1)(B).\n\n In the pre-sentence report (PSR), the U.S. Probation\nOffice calculated that Hill had a total offense level of 21, a\ncriminal history category of VI, and a resulting advisory\nguideline range of 77–96 months’ imprisonment. The parties\nagreed as to all of those conclusions. The PSR recommended\na sentence of 77 months’ imprisonment, which was “within,\nbut at the low end of the advisory guideline range, followed\nby a 3-year term of supervised release,” given Hill’s\n“significant criminal history involving firearms, violence, and\na disregard for lawful court orders.” In describing the offense\nconduct, the PSR noted that “[t]he Indictment initially\ncharged [Hill] under the Armed Career Criminal Statute,\n18 U.S.C. § 924(e)(1); however, as part of plea negotiations,\nthat enhancement was stricken at the time the defendant\nentered his plea.”\n\n B\n\n The district court conducted Hill’s sentencing hearing in\nMay 2013. The prosecutor argued in favor of a 71-month\nsentence. He noted Hill’s criminal history and stated that\n“while some of it is very old, and that was the reason the\nGovernment sort of removed the armed career criminal\n\f UNITED STATES V. HILL 7\n\nenhancement from the table, it doesn’t disappear. It’s still out\nthere.”\n\n The district court accepted Hill’s guilty plea. In providing\nHill with its reasons for the sentence, the court reviewed\nHill’s criminal history, “which [was] very serious and\nlengthy,” along with “the very serious nature of th[e] offense,\nand then the good parts of [Hill’s] life and character” and his\n“psychological issues,” including his problem with alcohol.\nThe court accepted the PSR’s calculation of the advisory\nsentencing guidelines range, and noted that if it “were to\nfollow the presentence report, the low end of [Hill’s] range\nwould be 77 up to 96 months.” Instead, the court “tried to\nconsider various factors under Section 3553(a) to fashion a\nfair and just sentence here under [Hill’s] individual\ncircumstances.” It therefore decided to impose the below-\nguidelines sentence of 67 months, which was within the 57-\nto 71-month range recommended by the parties.\n\n After the court announced the sentence, it asked whether\nthere were other pending charges requiring dismissal or other\nresolution. The prosecutor stated that there were none, and\ncontinued: “It’s my understanding that when [Hill] entered\nhis change of plea, it was at that time that the Court struck the\narmed career criminal enhancement, so there are no other\ncharges to be dismissed.”\n\n Other than the prosecutor’s brief references to the ACCA\nenhancement as being inapplicable to Hill, as noted above,\nthere was no discussion of ACCA at the sentencing hearing.\nThe court did not mention ACCA in its Statement of Reasons;\nrather, it indicated that a downward variance was appropriate\ngiven Hill’s “psychological issues.”\n\f8 UNITED STATES V. HILL\n\n Judgment was entered on June 1, 2013. Because Hill did\nnot file a direct appeal, that judgment became final on June\n15, 2013. See Fed. R. App. P. 4(b)(1)(A).\n\n C\n\n In June 2015, the Supreme Court issued its decision in\nJohnson v. United States, 135 S. Ct. 2551 (2015). In\nJohnson, the Court addressed ACCA’s residual clause; that is,\nits definition of “violent felony” as a crime that “otherwise\ninvolves conduct that presents a serious potential risk of\nphysical injury to another.” 18 U.S.C. § 924(e)(2)(B).\nBecause that language left “grave uncertainty” about both\n“how to estimate the risk posed by a crime” and “how much\nrisk it takes for a crime to qualify as a violent felony,” it\ncreated “more unpredictability and arbitrariness than the Due\nProcess Clause tolerates.” Johnson, 135 S. Ct. at 2557–58.\nAccordingly, Johnson invalidated ACCA’s residual clause as\nunconstitutionally vague and held that any sentence imposed\nunder that clause was likewise invalid. Id. In a subsequent\ncase, the Court held that Johnson’s new rule applied\nretroactively on collateral review. Welch v. United States,\n136 S. Ct. 1257, 1264–65 (2016).\n\n D\n\n Within one year after Johnson, Hill filed a motion to\nvacate his sentence under 28 U.S.C. § 2255. In his motion,\nHill argued that Johnson affected the calculation of his\nGuidelines range. Specifically, an applicable section of the\nGuidelines, U.S.S.G. § 4B1.2, defined “crime of violence”\nusing the same language that the Court invalidated in\nJohnson. Hill argued that his sentence was unconstitutional\nto the extent it was affected by this unconstitutionally vague\n\f UNITED STATES V. HILL 9\n\nlanguage. This argument was quickly foreclosed by the\nSupreme Court’s subsequent decision in Beckles v. United\nStates, 137 S. Ct. 886 (2017), which held that the Sentencing\nGuidelines are not subject to vagueness challenges under the\nDue Process Clause. Id. at 890.\n\n After Beckles was decided, Hill regrouped and filed a\nsupplemental memorandum. In this memorandum, Hill\nargued that as a result of Johnson, he was not subject to the\n15-year mandatory minimum ACCA sentence because his\nprior Oregon convictions did not qualify as violent felonies\nwithout reliance on the unconstitutional residual clause. His\nplea agreement and sentence were tainted, Hill contends,\nbecause the potential for receiving ACCA’s 15-year\nmandatory minimum enhancement was a key reason he\nagreed to the sentencing range in the plea agreement, and the\nplea agreement, in turn, influenced the sentencing judge.\nBecause Hill’s sentencing process was impacted by an\nunconstitutionally vague law, Hill argues, the court should\nvacate his sentence as unconstitutional and remand for\nresentencing. Hill has not sought vacatur of his plea\nagreement.\n\n On July 25, 2017, the court denied Hill’s § 2255 motion\nin a minute order without explanation. On October 25, 2017,\nit entered an additional minute order granting a certificate of\nappealability on the issue of “whether Mr. Hill’s sentence\nviolated his constitutional rights under Johnson v. United\nStates, 135 S. Ct. 2551 (2015), because the Armed Career\nCriminal Act’s mandatory minimums influenced his plea\nnegotiations.”\n\f10 UNITED STATES V. HILL\n\n In July 2017, Hill completed his 67-month prison\nsentence. He is presently serving his three-year term of\nsupervised release.\n\n II\n\n The district court had jurisdiction over Hill’s motion\nunder 28 U.S.C. § 2255. We have jurisdiction of Hill’s\ntimely appeal of the denial of his motion under 28 U.S.C.\n§§ 1291 and 2253(a). We review de novo the district court’s\ndenial of Hill’s § 2255 motion. See United States v. Jones,\n877 F.3d 884, 886 (9th Cir. 2017) (per curiam).1\n\n A\n\n “Section 2255 is a substitute for habeas corpus relief for\nfederal prisoners.” United States v. Swisher, 811 F.3d 299,\n306 (9th Cir. 2016) (en banc). It allows a federal prisoner to\nfile a motion to “vacate, set aside or correct” the prisoner’s\nconviction or sentence “upon the ground that the sentence\nwas imposed in violation of the Constitution or laws of the\nUnited States, or that the court was without jurisdiction to\nimpose such sentence.” 28 U.S.C. § 2255(a). The Fifth\nAmendment guarantee of due process is violated when a\ncourt, in sentencing a defendant, relies on information that is\n\n\n 1\n Because the government does not distinctly argue that Hill’s claim\nis untimely under the one-year statute of limitations in 28 U.S.C.\n§ 2255(f), it has waived this argument and we do not address it. See Day\nv. McDonough, 547 U.S. 198, 206, 209 (2006) (holding that the analogous\none-year limitations period in 28 U.S.C. § 2244(d)(1)(A) for habeas\npetitions brought by state prisoners is not jurisdictional so need not be\nconsidered sua sponte); see also Entm’t Research Grp., Inc. v. Genesis\nCreative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (holding that a\nparty waives an argument on appeal by failing to raise it distinctly).\n\f UNITED STATES V. HILL 11\n\nmaterially false or unreliable. See Vanderwerfhorst, 576 F.3d\nat 935–36; see also Townsend v. Burke, 334 U.S. 736, 741\n(1948) (holding that the Due Process Clause is violated when\na pro se criminal defendant “was sentenced on the basis of\nassumptions concerning his criminal record which were\nmaterially untrue”).\n\n To succeed on a claim that a district court violated the\nDue Process Clause by imposing a “sentence founded at least\nin part upon misinformation of constitutional magnitude,”\nUnited States v. Tucker, 404 U.S. 443, 447 (1972), a\ndefendant “must establish the challenged information is\n(1) false or unreliable, and (2) demonstrably made the basis\nfor the sentence,” Vanderwerfhorst, 576 F.3d at 935–36\n(quoting Ibarra, 737 F.2d at 827). To satisfy the first factor,\nthe challenged information must be “objectively ascertainable\nerror,” United States v. Addonizio, 442 U.S. 178, 187 (1979);\nthat is, an error “that does not require courts to probe the\nmind of the sentencing judge,” United States v. Eakman,\n378 F.3d 294, 301 (3d Cir. 2004). For the second factor, the\ncourt must have “made it abundantly clear that (the\nchallenged information) was the basis for its sentence.”\nFarrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978)\n(internal quotation marks omitted); see also id. (“In the\ncontext of a § 2255 proceeding, a motion must be denied\nunless it affirmatively appears in the record that the court\n[b]ased its sentence on improper information.”). Even a\ndistrict court’s reference to challenged information (for\nexample, noting that allegations of misconduct “continue to\n‘swirl around’” the defendant) is not enough to satisfy this\nsecond factor; such a passing reference is “readily\ndistinguishable from sentencing [the defendant] based on an\nassumption that he in fact committed the predicate acts.”\nVanderwerfhorst, 576 F.3d at 936.\n\f12 UNITED STATES V. HILL\n\n Once a movant has established these factors, “[u]nless the\nmotion and the files and records of the case conclusively\nshow that the prisoner is entitled to no relief, the court shall\ncause notice thereof to be served upon the United States\nattorney, grant a prompt hearing thereon, determine the issues\nand make findings of fact and conclusions of law with respect\nthereto.” 28 U.S.C. § 2255(b). After such a hearing, the\nmovant is entitled to relief if the sentence “might have been\ndifferent if the sentencing judge had” not relied on that\ninformation. Tucker, 404 U.S. at 448.\n\n B\n\n On appeal, Hill reiterates his argument that the court\nshould have granted his § 2255 motion because his sentence\nwas tainted by his eligibility for receiving an unlawful ACCA\nsentence. In order to succeed on this claim, Hill must first\nestablish that the district court imposed a sentence founded on\nmisinformation of a constitutional magnitude, meaning that\nit relied on information that is (1) false or unreliable, and\n(2) demonstrably made the basis for the sentence. See\nVanderwerfhorst, 576 F.3d at 935–36.\n\n The challenged information in this case, Hill claims, is the\nmisinformation that Hill was eligible for an ACCA 15-year\nminimum sentence. Hill argues that his prior Oregon\nconvictions do not qualify as violent felonies now that the\nresidual clause has been struck down by Johnson, and\ntherefore he was not eligible for an ACCA enhancement.\n\n We need not resolve whether this information was false\nor unreliable, however, because even assuming Hill is correct,\nhe has not shown that such information was demonstrably\nmade the basis for his sentence. See Vanderwerfhorst,\n\f UNITED STATES V. HILL 13\n\n576 F.3d at 935–36. Although Hill’s indictment included an\nACCA charge, there is no dispute that the charge was\ndismissed when Hill entered his change of plea. The PSR\nnoted that the ACCA charge had been stricken, as did the\nprosecutor at sentencing. Even the plea agreement was not\nexpressly based on the potential for an ACCA enhancement;\nto the contrary, it stated that, based on mitigation materials\nprovided by Hill’s counsel, a “non-Armed Career Criminal\nsentence is appropriate.” Accordingly, no ACCA-related\nenhancement was before the district court at sentencing.\n\n During the sentencing hearing, Hill concedes, “the\nsentencing court did not reference the ACCA when it\nimposed sentence.” Rather, the court discussed Hill’s\ncriminal history, alcoholism, psychological issues, and other\nfactors. Further, rather than impose an enhanced sentence,\nthe court imposed a below-Guidelines sentence that was\nwithin the sentencing range set forth in the plea agreement.\nIn fact, there is no evidence that the court even considered\nwhether Hill was eligible for an ACCA enhancement, let\nalone that the court made it the basis for Hill’s sentence.\n\n Hill argues that there is nevertheless an indirect\nrelationship between his supposed eligibility for an ACCA\nenhancement and the court’s sentence. According to Hill, the\npotential for a 15-year mandatory ACCA sentence was a\nlooming presence in his plea negotiations, and affected the\nsentencing range set forth in the plea agreement. Because the\ndistrict court considered the sentencing range in the plea\nagreement, Hill argues, the court was indirectly affected by\nthe background presence of ACCA eligibility. This argument\nfails. A defendant must show that the challenged information\nwas “demonstrably made the basis for the sentence”; even\nevidence that the district court mentioned the challenged\n\f14 UNITED STATES V. HILL\n\ninformation in passing may not suffice. Vanderwerfhorst,\n576 F.3d at 935–36. Given that Hill has provided no\nevidence that the threat of an ACCA charge played a role in\nthe district court’s formulation of the sentence, he fails to\nmeet the standard here.\n\n Because Hill has not established that the challenged\ninformation was the basis of the court’s sentence, we reject\nHill’s claim that his due process rights were violated, and\nconclude he is not entitled to a hearing on that claim.\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365682/", "author_raw": "IKUTA, Circuit Judge:"}]}	FERDINAND F FERNANDEZ	SANDRA S IKUTA	WILLIAM K SESSIONS III	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588429/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,837		United States v. Jessica Soto	2019-02-08	18-10070	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ronald Lee Gilman, ** Richard A. Paez, and John B. Owens, Circuit Judges.", "parties": "", "opinions": [{"author": "GILMAN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 18-10070\n Plaintiff-Appellee,\n D.C. No.\n v. 4:16-cr-00478-\n JGZ-LAB-19\n JESSICA BRIDGET SOTO,\n Defendant-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Jennifer G. Zipps, District Judge, Presiding\n\n Submitted December 17, 2018 \n San Francisco, California\n\n Filed February 8, 2019\n\n Before: Ronald Lee Gilman, * Richard A. Paez,\n and John B. Owens, Circuit Judges.\n\n Opinion by Judge Gilman\n\n \n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n \n The Honorable Ronald Lee Gilman, United States Circuit Judge\nfor the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.\n\f2 UNITED STATES V. SOTO\n\n SUMMARY \n\n\n Criminal Law\n\n The panel affirmed the district court’s forfeiture order in\na case in which the defendant pleaded guilty to one count of\nattempting to export ammunition from the United States, in\nviolation of 18 U.S.C. § 554, and one count of conspiracy to\nexport firearms and ammunition, in violation of 18 U.S.C.\n§ 371.\n\n The panel rejected the defendant’s argument that\nforfeiture is unavailable in this case because §§ 371 and\n554(a) are not expressly mentioned in the federal forfeiture\nstatute. The panel held that the district court did not err in\nordering forfeiture because 18 U.S.C. § 924(d)(1) authorizes\nforfeiture of firearms and ammunition involved in a federal\ncrime.\n\n The panel held that, under 21 U.S.C. § 853(p), the district\ncourt did not err in ordering the forfeiture of substitute\nproperty up to the value of ammunition that the defendant\nhad transferred to a coconspirator.\n\n The panel held that because the defendant did not\nchallenge the adequacy of the notice of forfeiture in the\nindictment before the district court or in her opening brief,\nthe challenge (first raised in her reply brief) is not\nreviewable. The panel wrote that even if the adequacy of the\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. SOTO 3\n\nnotice were reviewable, the district court did not commit\nplain error regarding the adequacy of the notice.\n\n\n COUNSEL\n\nA. Bates Butler III, Tucson, Arizona, for Defendant-\nAppellant.\n\nRobert L. Miskell, Chief, Appellate Section; Elizabeth A.\nStrange, First Assistant United States Attorney; United\nStates Attorney’s Office, Tucson, Arizona; for Plaintiff-\nAppellee.\n\n\n OPINION\n\nGILMAN, Circuit Judge:\n\n Jessica Bridget Soto, along with 20 other defendants,\nwas indicted for crimes relating to a conspiracy to illegally\nexport firearms and ammunition from the United States to\nMexico. She pleaded guilty to one count of attempting to\nexport ammunition from the United States and to one count\nof conspiracy to export firearms and ammunition. Soto\nargues that the district court’s forfeiture order was improper\nbecause the crimes for which she was convicted do not\nauthorize forfeiture. She also contends that the notice of\nforfeiture in the indictment was inadequate because it cited\nan inapplicable statutory provision. For the reasons set forth\nbelow, we AFFIRM the district court’s forfeiture order.\n\f4 UNITED STATES V. SOTO\n\n I. BACKGROUND\n\nA. Factual background\n\n A joint investigation by the Bureau of Alcohol, Tobacco,\nFirearms and Explosives and Homeland Security\nInvestigations uncovered a conspiracy in which the\nparticipants purchased firearms and ammunition in the\nUnited States and illegally smuggled those items into\nMexico. The investigation determined that the conspiracy\ninvolved at least 70 firearms and approximately 74,880\nrounds of ammunition.\n\n Soto purchased and transported ammunition on at least\ntwo occasions. In December 2015, she purchased 28,500\nrounds of ammunition in Phoenix, Arizona. She then\ntransported the ammunition to the United States-Mexico\nborder and provided it to a coconspirator. In January 2016,\nshe purchased 26,000 more rounds of ammunition in\nPhoenix. Agents arrested Soto while she was transporting\nthis second purchase of ammunition south towards the\nborder.\n\nB. Procedural background\n\n Soto was charged with two counts of attempting to\nexport ammunition from the United States, in violation of\n18 U.S.C. § 554, and one count of conspiracy to export\nfirearms and ammunition, in violation of 18 U.S.C. § 371.\nThe indictment charged that, upon conviction, the firearms\nand ammunition involved in the offenses would be forfeited.\nIf the firearms and ammunition could not be located or had\nbeen transferred to a third party, the indictment charged that\nthe government would seek forfeiture of other property\nworth no more than the value of the firearms and\nammunition in question.\n\f UNITED STATES V. SOTO 5\n\n Soto pleaded guilty to one of the attempted-exportation\ncounts and to the conspiracy count, with the government\nagreeing to dismiss the other attempted-exportation count.\nThe district court then sentenced Soto to four years’\nprobation and imposed a special assessment of $200. It also\nordered the forfeiture of the firearms and ammunition that\nthe government seized. Because Soto had previously\ntransferred the 28,500 rounds of ammunition purchased in\nDecember 2015, with a value of $7,123, the court authorized\nthe government to seize substitute property belonging to\nSoto worth up to that amount. Soto did not object to the\nforfeiture order at sentencing.\n\n After Soto filed her notice of appeal, she filed a motion\nto correct what she claimed to be a clear error at sentencing\nunder Rule 35(a) of the Federal Rules of Criminal Procedure.\nThat error, according to Soto, is the absence of any statutory\nauthority for forfeiture in this case. The district court denied\nSoto’s Rule 35(a) motion.\n\n II. ANALYSIS\n\nA. Standard of review\n\n This court usually reviews de novo a district court’s\ninterpretation of federal forfeiture law. United States v.\n$493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th Cir.\n2008). But here, Soto did not object to the final order of\nforfeiture at sentencing. She instead first objected to the\nforfeiture order in a motion filed under Rule 35(a) of the\nFederal Rules of Criminal Procedure after she had already\nfiled her notice of appeal. Nor did Soto appeal the district\ncourt’s denial of her Rule 35(a) motion. That motion is\ntherefore not part of this appeal. Accordingly, we review the\ndistrict court’s forfeiture order under the plain-error\n\f6 UNITED STATES V. SOTO\n\nstandard. See United States v. Yijun Zhou, 838 F.3d 1007,\n1010 (9th Cir. 2016).\n\nB. The district court did not err in ordering forfeiture\n because 18 U.S.C. § 924(d)(1) authorizes forfeiture of\n firearms and ammunition involved in a federal crime.\n\n Soto argues that criminal forfeiture is available only if a\nfederal forfeiture statute expressly references the criminal\nstatute under which a defendant is convicted. Because Soto\nwas convicted of violating 18 U.S.C. §§ 371 and 554(a), and\nthese statutes are not expressly mentioned in any federal\nforfeiture statute, she argues that forfeiture is unavailable in\nthis case.\n\n Soto’s argument fails because she overlooks 18 U.S.C.\n§ 924(d)(1), which provides that “[a]ny firearm or\nammunition involved in or used in any . . . violation of any\nother criminal law of the United States . . . shall be subject\nto seizure and forfeiture . . . .” Congress did not define the\nword “involved” in the statute, but the Supreme Court held\nin Smith v. United States, 508 U.S. 223 (1993), that the term\nshould be defined broadly:\n\n Examination of the offenses to which the\n “involved in” language applies reveals why\n Congress believed it necessary to include\n such an expansive term. One of the listed\n offenses, violation of § 922(a)(6), is the\n making of a false statement material to the\n lawfulness of a gun’s transfer. Because\n making a material misstatement in order to\n acquire or sell a gun is not “use” of the gun\n even under the broadest definition of the\n word “use,” Congress carefully expanded the\n statutory language. As a result, a gun with\n\f UNITED STATES V. SOTO 7\n\n respect to which a material misstatement is\n made is subject to forfeiture because, even\n though the gun is not “used” in the offense, it\n is “involved in” it.\n\nId. at 235.\n\n The Third Circuit in United States v. Cheeseman,\n600 F.3d 270 (3d Cir. 2010), defined the plain meaning of\nthe phrase “involved in” by quoting Merriam-Webster’s\ndictionary as follows: “(1) ‘to engage as a participant’;\n(2) ‘to relate closely’; (3) ‘to have within or as part of itself’;\nand (4) ‘to require as a necessary accompaniment.’” Id. at\n278 (quoting Merriam-Webster’s Collegiate Dictionary 660\n(11th ed. 2003)). In that case, the defendant pleaded “guilty\nto violating 18 U.S.C. § 922(g)(3), which criminalizes\npossession of firearms and ammunition by an unlawful user\nor addict of a controlled substance.” Id. at 272. The\ndefendant argued on appeal that the district court’s\nauthorization of the forfeiture of firearms and ammunition\npursuant to § 924(d)(1) violated that statute because the\nfirearms and ammunition were not “involved in” the crime.\nId.\n\n The Third Circuit disagreed. It held that the firearms and\nammunition were “involved in” the crime because “without\nthe firearms, there would have been no crime.” Id. at 278.\nReferring to Merriam-Webster’s definition, the court held\nthat the firearms were “related closely to and were a\nnecessary accompaniment to the crime charged.” Id.\nSimilarly, in Soto’s case, the firearms and ammunition were\ninvolved in the crimes of attempting to export ammunition\nand conspiracy to export firearms and ammunition because,\nwithout the firearms and ammunition, there would have been\nno crime.\n\f8 UNITED STATES V. SOTO\n\n The forfeiture order is also authorized by the following\nclause of 18 U.S.C. § 924(d)(1): “[A]ny firearm or\nammunition intended to be used in any offense referred to in\nparagraph (3) of this subsection, where such intent is\ndemonstrated by clear and convincing evidence, shall be\nsubject to seizure and forfeiture . . . .” The offenses listed in\nparagraph (3) include “any offense which may be prosecuted\nin a court of the United States which involves the exportation\nof firearms or ammunition.” 18 U.S.C. § 924(d)(3)(F).\nSoto’s offenses of conviction involve the exportation of\nfirearms and ammunition, so the district court’s forfeiture\norder is also authorized by § 924(d)(1) and (d)(3)(F).\n\n Section 924(d)(1) authorizes forfeiture “as a remedial\ncivil sanction rather than a criminal punishment.” United\nStates v. One Assortment of 89 Firearms, 465 U.S. 354, 364\n(1984). But 28 U.S.C. § 2461(c) “permits the government\nto seek criminal forfeiture whenever civil forfeiture is\navailable and the defendant is found guilty of the offense.”\nUnited States v. Pollard, 850 F.3d 1038, 1041 (9th Cir.\n2017) (emphasis in original) (quoting United States v.\nNewman, 659 F.3d 1235, 1239 (9th Cir. 2011)). In other\nwords, § 2461(c) “make[s] criminal forfeiture available in\nevery case that the criminal forfeiture statute does not reach\nbut for which civil forfeiture is legally authorized.” Id.\n(alteration in original) (quoting Newman, 659 F.3d at 1239).\nCivil forfeiture in Soto’s case is authorized by § 924(d)(1),\nas discussed above, so criminal forfeiture is available\npursuant to § 2461(c).\n\nC. The district court did not err in ordering the\n forfeiture of substitute property.\n\n The forfeiture of substitute assets for the ammunition\nthat Soto transferred to a coconspirator is authorized by\n21 U.S.C. § 853(p). Section 2461(c)—the statute that\n\f UNITED STATES V. SOTO 9\n\nauthorizes criminal forfeiture whenever civil forfeiture is\navailable—provides that the procedures in § 853, with the\nexception of § 853(d) (which is not applicable in this case),\n“apply to all stages of a criminal forfeiture proceeding.”\n28 U.S.C. § 2461(c). And § 853(p) provides as follows:\n\n (p) Forfeiture of substitute property\n\n (1) In general\n\n Paragraph (2) of this subsection shall\n apply, if any property described in\n subsection (a), as a result of any act or\n omission of the defendant—\n\n (A) cannot be located upon the\n exercise of due diligence;\n\n (B) has been transferred or sold to, or\n deposited with, a third party;\n\n (C) has been placed beyond the\n jurisdiction of the court;\n\n (D) has been substantially diminished\n in value; or\n\n (E) has been commingled with other\n property which cannot be divided\n without difficulty.\n\n (2) Substitute property\n\n In any case described in any of\n subparagraphs (A) through (E) of\n\f10 UNITED STATES V. SOTO\n\n paragraph (1), the court shall order the\n forfeiture of any other property of the\n defendant, up to the value of any property\n described in subparagraphs (A) through\n (E) of paragraph (1), as applicable.\n\n21 U.S.C. § 853(p).\n\n Section 853(p) is a procedural provision, so § 2461(c)\nmakes it applicable here. See Honeycutt v. United States,\n137 S. Ct. 1626, 1634 (2017) (“Congress provided just one\nway for the Government to recoup substitute property when\nthe tainted property itself is unavailable—the procedures\noutlined in § 853(p).”); United States v. Lo, 839 F.3d 777,\n790 (9th Cir. 2016) (“Section 853(p) provides a procedure\nfor the forfeiture of substitute property . . . .”). The\nrequirements of § 853(p) were met in this case because Soto\nhad ammunition that was subject to forfeiture and she\ntransferred that ammunition to a coconspirator.\nAccordingly, the district court committed no error, much less\nplain error, in ordering the forfeiture of substitute property\nup to the value of the ammunition that was transferred.\n\n This court recently addressed a similar issue in United\nStates v. Valdez, 911 F.3d 960 (9th Cir. 2018). Like Soto,\nthe defendant in Valdez pleaded guilty to attempted\nsmuggling of ammunition from the United States into\nMexico, in violation of 18 U.S.C. § 554(a). Id. at 962. The\ndistrict court entered a final order of forfeiture against the\ndefendant for substitute property in lieu of the ammunition.\nId. Valdez challenged the forfeiture order on appeal, arguing\nthat “[28 U.S.C.] § 2461(c) does not apply to civil forfeitures\nunder [28 U.S.C.] § 924(d) because § 924(d) does not use\nthe word ‘property,’” id. at 964, and because § 2461(c) limits\ncourts to ordering “the forfeiture of the property.”\n\f UNITED STATES V. SOTO 11\n\n We rejected Valdez’s argument and held that “[s]ection\n924(d) indisputably authorizes the civil forfeiture of firearms\nand ammunition, which simply are specific types of\nproperty.” Id. Ultimately, we held that “[s]ection 924(d)\ndescribes the forfeitable property, and § 2461(c) authorizes\nthe use of the procedures of § 853 with respect to the\nforfeitable property.” Id. at 967 (emphasis in original).\nAlthough that holding is relevant to the present case, Soto\nand Valdez raised different arguments on appeal. This has\nrequired us to consider Soto’s contention that criminal\nforfeiture is available only if a federal forfeiture statute\nexpressly references the criminal statute under which a\ndefendant is convicted.\n\nD. Soto’s challenge to the adequacy of the notice of\n forfeiture in the indictment is not reviewable, but\n even if it were, the notice was adequate.\n\n Soto also challenges the adequacy of the notice of\nforfeiture set forth in the indictment. For Soto’s offenses,\nthe indictment states that the government would seek\nforfeiture pursuant to 18 U.S.C. § 981(a)(1)(C) and\n28 U.S.C. § 2461(c). Section 981 sets forth when civil\nforfeiture is available and, as explained above, § 2461(c)\nauthorizes criminal forfeiture whenever civil forfeiture is\navailable.\n\n Soto correctly argues that § 981 is not applicable in this\ncase because the crimes listed in that statute do not include\nthe offenses for which she was convicted. But this challenge\nfirst appears in her reply brief. Because Soto did not\nchallenge the adequacy of the notice of forfeiture in the\nindictment before the district court or in her opening brief,\nthe challenge is not reviewable. See Greenwood v. F.A.A.,\n28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues\n\f12 UNITED STATES V. SOTO\n\nwhich are argued specifically and distinctly in a party’s\nopening brief.”).\n\n And even if we were to review Soto’s challenge that the\nindictment lacked adequate notice of forfeiture, we would do\nso under the plain-error standard because Soto did not raise\nthis argument before the district court. Rule 32.2(a) of the\nFederal Rules of Criminal Procedure prevents a district court\nfrom ordering criminal forfeiture unless the indictment\nincludes notice that the government will seek forfeiture “as\npart of any sentence in accordance with the applicable\nstatute.” Other courts have held that the notice requirement\nof Rule 32.2(a) is met even if the indictment contains a\nforfeiture allegation that cites the wrong statute. See, e.g.,\nUnited States v. Silvious, 512 F.3d 364, 369–70 (7th Cir.\n2008) (“Listing the wrong forfeiture statute did not prevent\nSilvious from receiving notice under Rule 32.2(a).”).\n\n Here, the indictment informed Soto that the government\nintended to seek forfeiture. And the preliminary and final\nforfeiture orders correctly cited 18 U.S.C. § 924(d),\n28 U.S.C. § 2461(c), and 21 U.S.C. § 853(p)(1)(B) as the\napplicable provisions. So even though the indictment cited\nthe wrong statute, Soto was nevertheless provided with\nadequate notice of forfeiture. The district court therefore did\nnot commit plain error regarding the adequacy of notice.\n\n III. Conclusion\n\n For all of the reasons set forth above, we AFFIRM the\ndistrict court’s forfeiture order.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366090/", "author_raw": "GILMAN, Circuit Judge:"}]}	RONALD LEE GILMAN	RICHARD A PAEZ	JOHN B OWENS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588837/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,982		George Young, Jr. v. State of Hawaii	2019-02-08	12-17808	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS FEB 8 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nGEORGE K. YOUNG, Jr., No. 12-17808\n\n Plaintiff-Appellant, D.C. No.\n 1:12-cv-00336-HG-BMK\n v. District of Hawaii,\n Honolulu\nSTATE OF HAWAII; NEIL\nABERCROMBIE, in his capacity as ORDER\nGovernor of the State of Hawaii; DAVID\nMARK LOUIE I, Esquire, in his capacity as\nState Attorney General; COUNTY OF\nHAWAII, as a sub-agency of the State of\nHawaii; WILLIAM P. KENOI, in his\ncapacity as Mayor of the County of Hawaii;\nHILO COUNTY POLICE DEPARTMENT,\nas a sub-agency of the County of Hawaii;\nHARRY S. KUBOJIRI, in his capacity as\nChief of Police; JOHN DOES, 1-25; JANE\nDOES, 1-25; DOE CORPORATIONS, 1-5;\nDOE ENTITIES, 1-5,\n\n Defendants-Appellees.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\nand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\n\ncited as precedent by or to any court of the Ninth Circuit.\n\fJudges Bennett did not participate in the deliberations or vote in this case.\n\n\n\n\n 2", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366235/"}]}				0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588982/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
9,022,987	George K. YOUNG, Jr. v. State of HAWAII Neil Abercrombie, in His Capacity as Governor of the State of Hawaii David Mark Louie I, Esquire, in His Capacity as State Attorney General County of Hawaii, as a Sub-Agency of the State of Hawaii William P. Kenoi, in His Capacity as Mayor of the County of Hawaii Hilo County Police Department, as a Sub-Agency of the County of Hawaii Harry S. Kubojiri, in His Capacity as Chief of Police John Does, 1-25 Jane Does, 1-25 Doe Corporations, 1-5 Doe Entities, 1-5	Young v. Hawaii	2019-02-08	No. 12-17808	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Bennett, Deliberations, Vote", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016224/", "author_raw": ""}]}	BENNETT		BENNETT	0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022987/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,538		Center for Bio. Diversity v. Usdhs	2019-02-11	18-55474	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: M. Margaret McKeown, Consuelo M. Callahan, and Jacqueline H. Nguyen, Circuit Judges.", "parties": "", "opinions": [{"author": "McKEOWN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nIN RE BORDER INFRASTRUCTURE No. 18-55474\nENVIRONMENTAL LITIGATION,\n D.C. Nos.\n 3:17-cv-01215-\nCENTER FOR BIOLOGICAL DIVERSITY, GPC-WVG\n Plaintiff-Appellant, 3:17-cv-01873-\n GPC-WVG\n and 3:17-cv-01911-\n GPC-WVG\nDEFENDERS OF WILDLIFE, a nonprofit\nconservation organization; SIERRA\nCLUB, a nonprofit public benefit\ncorporation; ANIMAL LEGAL\nDEFENSE FUND; PEOPLE OF THE\nSTATE OF CALIFORNIA, by and\nthrough Xavier Becerra, Attorney\nGeneral; CALIFORNIA COASTAL\nCOMMISSION,\n Plaintiffs,\n\n v.\n\nU.S. DEPARTMENT OF HOMELAND\nSECURITY; U.S. CUSTOMS AND\nBORDER PROTECTIONS; KIRSTJEN\nNIELSEN, Secretary, in her official\ncapacity; KEVIN K. MCALEENAN,\n\n2 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n\nCommissioner, in his official\ncapacity,\n Defendants-Appellees.\n\n\n\nIN RE BORDER INFRASTRUCTURE No. 18-55475\nENVIRONMENTAL LITIGATION,\n D.C. Nos.\n 3:17-cv-01215-\nCENTER FOR BIOLOGICAL DIVERSITY; GPC-WVG\nPEOPLE OF THE STATE OF 3:17-cv-01873-\nCALIFORNIA, by and through Xavier GPC-WVG\nBecerra, Attorney General; 3:17-cv-01911-\nCALIFORNIA COASTAL COMMISSION, GPC-WVG\n Plaintiffs,\n\n and\n\nDEFENDERS OF WILDLIFE, a nonprofit\nconservation organization; SIERRA\nCLUB, a nonprofit public benefit\ncorporation; ANIMAL LEGAL\nDEFENSE FUND,\n Plaintiffs-Appellants,\n\n v.\n\nU.S. DEPARTMENT OF HOMELAND\nSECURITY; U.S. CUSTOMS AND\nBORDER PROTECTIONS; KIRSTJEN\nNIELSEN, Secretary, in her official\ncapacity; KEVIN K. MCALEENAN,\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 3\n\n\nCommissioner, in his official\ncapacity,\n Defendants-Appellees.\n\n\n\nIN RE BORDER INFRASTRUCTURE No. 18-55476\nENVIRONMENTAL LITIGATION,\n D.C. Nos.\n 3:17-cv-01215-\nCENTER FOR BIOLOGICAL DIVERSITY; GPC-WVG\nDEFENDERS OF WILDLIFE, a nonprofit 3:17-cv-01873-\nconservation organization; SIERRA GPC-WVG\nCLUB, a nonprofit public benefit 3:17-cv-01911-\ncorporation; ANIMAL LEGAL GPC-WVG\nDEFENSE FUND,\n Plaintiffs,\n OPINION\n and\n\nPEOPLE OF THE STATE OF\nCALIFORNIA, by and through Xavier\nBecerra, Attorney General;\nCALIFORNIA COASTAL COMMISSION,\n Plaintiffs-Appellants,\n\n v.\n\nU.S. DEPARTMENT OF HOMELAND\nSECURITY; U.S. CUSTOMS AND\nBORDER PROTECTIONS; KIRSTJEN\nNIELSEN, Secretary, in her official\ncapacity; KEVIN K. MCALEENAN,\n\n4 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n\nCommissioner, in his official\ncapacity,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Southern District of California\n Gonzalo P. Curiel, District Judge, Presiding\n\n Argued and Submitted August 7, 2018\n Pasadena, California\n\n Filed February 11, 2019\n\n Before: M. Margaret McKeown, Consuelo M. Callahan,\n and Jacqueline H. Nguyen, Circuit Judges.\n\n Opinion by Judge McKeown;\n Dissent by Judge Callahan\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 5\n\n SUMMARY \n\n\n Environmental Law / Homeland Security\n\n The panel affirmed the district court’s summary\njudgment entered in favor of the U.S Department of\nHomeland Security (“DHS”) in cases involving challenges\nby the State of California and environmental groups to\nDHS’s authority to expedite construction of border barriers\nnear San Diego and Calexico, California, and the Secretary\nof DHS’s August and September 2017 waivers of applicable\nenvironmental laws.\n\n Pursuant to Executive Order 13,767, the Secretary of\nDHS invoked section 102(c) of the Illegal Immigration\nReform and Immigrant Responsibility Act of 1996\n(“IIRIRA”) to waive federal laws with respect to border\nbarrier construction projects along the border between the\nUnited States and Mexico.\n\n The plaintiffs’ “ultra vires claims” alleged that DHS\nexceeded its statutory authority in working on the border\nbarrier projects and issuing the related waivers in violation\nof the Administrative Procedure Act (“APA”). The\nplaintiffs’ “environmental claims” alleged that in planning\nand building the border barrier projects, DHS violated\nfederal environmental laws.\n\n As a threshold matter, the panel held that they had\njurisdiction to consider the “predicate legal question” of\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n6 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\nwhether IIRIRA authorized the contested projects. Because\nneither IIRIRA nor the APA barred the panel’s review, the\npanel turned to the merits of the ultra vires and\nenvironmental claims.\n\n The panel held that the plain text of section 102(a) of\nIIRIRA granted DHS authority to construct the border\nbarrier projects, and that grant of authority was not limited\nby section 102(b) of IIRIRA. The panel concluded that the\ndistrict court correctly granted DHS summary judgment on\nthe ultra vires claims. The panel further held that the\nenvironmental claims were precluded by the Secretary’s\nwaiver of the National Environmental Policy Act, the\nCoastal Zone Management Act, and the APA. The panel\nheld that it lacked jurisdiction to consider any argument\nchallenging the waivers themselves.\n\n Judge Callahan dissented because she would read section\n102 of IIRIRA as limiting review of the district court’s\ndecision to review by certiorari in the Supreme Court; and\nshe would, accordingly, dismiss the appeals.\n\n\n COUNSEL\n\nNoah Golden-Krasner (argued), Julia Forgie, Jessica B.\nStrobel, Baine P. Kerr, Janelle M. Smith, and John\nApplebaum, Deputy Attorneys General; David G. Alderson,\nMichael P. Cayaban, and Edward H. Ochoa, Supervising\nDeputy Attorneys General; Robert W. Byrne, Senior\nAssistant Attorney General; Xavier Becerra, Attorney\nGeneral; Office of the Attorney General, Los Angeles,\nCalifornia; for Plaintiffs-Appellants People of the State of\nCalifornia and California Coastal Commission.\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 7\n\nBrian Segee and John Peter Rose, Center for Biological\nDiversity, Los Angeles, California; Anchun Jean Su and\nBrendan Cummings, Center for Biological Diversity,\nOakland, California; for Plaintiff-Appellant Center for\nBiological Diversity.\n\nAnthony T. Eliseuson, Animal Legal Defense Fund,\nChicago, Illinois; Sara K. Hanneken, Animal Legal Defense\nFund, Portland, Oregon; for Plaintiff-Appellant Animal\nLegal Defense Fund.\n\nJason Rylander, Defenders of Wildlife, Washington, D.C.,\nfor Plaintiff-Appellant Defenders of Wildlife.\n\nGloria D. Smith, Sierra Club, Oakland, California, for\nPlaintiff-Appellant Sierra Club.\n\nH. Thomas Byron III (argued), Courtney L. Dixon, and\nBenjamin M. Schultz, Appellate Staff; Adam L. Braverman,\nUnited States Attorney; Civil Division, United States\nDepartment of Justice, Washington, D.C.; for Defendants-\nAppellees.\n\n\n OPINION\n\nMcKEOWN, Circuit Judge:\n\n Under the Illegal Immigration Reform and Immigrant\nResponsibility Act of 1996 (“IIRIRA”), the Secretary of the\nDepartment of Homeland Security (“DHS”) has long had the\nauthority “to install additional physical barriers and roads\n. . . in the vicinity of the United States border . . . .” IIRIRA\n\n8 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n§ 102(a). 1 The Secretary also “ha[s] the authority to waive\nall legal requirements” that, in the “Secretary’s sole\ndiscretion,” are “necessary to ensure expeditious\nconstruction” of those barriers and roads. Id. § 102(c)(1).\n\n This appeal stems from a challenge by California and\nmultiple environmental groups to the agency’s authority to\nexpedite construction of border barriers near San Diego and\nCalexico, California, and the Secretary’s August and\nSeptember 2017 waivers of applicable environmental laws.\nAs a threshold matter, we have jurisdiction to consider the\n“predicate legal question” of whether IIRIRA authorizes the\ncontested projects. Because the projects are statutorily\nauthorized and DHS has waived the environmental laws\nCalifornia and the environmental groups seek to enforce, we\naffirm the district court’s grant of summary judgment to\nDHS.\n\n BACKGROUND\n\n On January 25, 2017, President Donald J. Trump issued\nExecutive Order 13,767, directing federal agencies to\n“deploy all lawful means to secure the Nation’s southern\nborder.” 82 Fed. Reg. 8793. A focal point of that directive\nwas “the immediate construction of a physical wall,” to be\nplanned, designed, and built “[i]n accordance with existing\nlaw, including . . . IIRIRA.” Id. at 8793–94. The “wall” was\nto be a “secure, contiguous, and impassable physical barrier”\n\n\n\n 1\n Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (codified as\namended at 8 U.S.C. § 1103 note). All section references are to IIRIRA\nunless otherwise indicated. IIRIRA originally granted the Attorney\nGeneral this authority. Congress transferred this authority to the DHS\nSecretary after creating DHS in 2002.\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 9\n\nalong the “contiguous land border between the United States\nand Mexico, including all points of entry.” Id. at 8794.\n\n By March 2017, DHS had begun planning projects\ncarrying out the Executive Order, including two relevant to\nthis appeal:\n\n • The construction and evaluation of wall “prototypes”\n in San Diego County, California (the “Prototype\n Project”); and\n\n • The replacement of fourteen miles of primary\n fencing and fourteen miles of secondary fencing in\n San Diego County (the “San Diego Project”).\n\n On August 2, 2017, the DHS Secretary 2 published in the\nFederal Register a notice of determination concerning the\nPrototype Project and the San Diego Project (the “San Diego\nWaiver”). See 82 Fed. Reg. 35,984 (Aug. 2, 2017). The\nSecretary invoked section 102(c)’s grant of “authority to\nwaive all legal requirements that I, in my sole discretion,\ndetermine necessary to ensure the expeditious construction\nof barriers and roads authorized by section 102 of IIRIRA.”\nId. at 35,984. The San Diego Waiver asserted that the U.S.\nBorder Patrol’s “San Diego Sector remains an area of high\nillegal entry for which there is an immediate need to\nconstruct additional border barriers and roads.” Id. The\ndesignated “Project Area”—extending fifteen miles inland\nfrom the Pacific Ocean—encompassed the Prototype and\nSan Diego Projects. Id. Having determined the action was\n\n 2\n During this period, John Kelly, Elaine Duke, and Kirstjen Nielsen\nserved as DHS Secretary. Because the identity of the Secretary who\ninitiated any given administrative action is not relevant to the legal issues\nin this appeal, we simply refer to the “Secretary” or “DHS Secretary.”\n\n10 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n“necessary,” the Secretary invoked section 102(c) to “waive\nin their entirety” thirty-seven federal laws “with respect to\nthe construction of roads and physical barriers” in the Project\nArea. Id. at 35,985.\n\n On September 12, 2017, the Secretary again invoked\nsection 102’s waiver authority in another notice of\ndetermination in the Federal Register (the “Calexico\nWaiver”). See 82 Fed. Reg. 42,829 (Sept. 12, 2017). The\nCalexico Waiver pertained to the replacement of primary\nfencing along a three-mile segment of the border near\nCalexico, California (the “Calexico Project”). Id. at 42,830.\nThe Secretary asserted that, like the San Diego Sector, the\n“El Centro Sector [which includes Calexico] remains an area\nof high illegal entry for which there is an immediate need to\nconstruct border barriers and roads,” and designated a\nProject Area for the replacement fencing. Id. Again\ndeeming the action “necessary,” the Secretary waived\ntwenty-seven federal laws “with respect to the construction\nof roads and physical barriers” in the Project Area. Id.\n\n With one exception, construction on the Prototype, San\nDiego, and Calexico Projects (collectively “the border\nbarrier projects”) has already begun and is either complete\nor ongoing. Construction on the San Diego secondary-fence\nreplacement project had not begun when DHS filed its\nAnswering Brief. DHS maintains that project is still in the\npreliminary planning stage, and that the Secretary has not yet\ndetermined whether a waiver is necessary.\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 11\n\n Three sets of plaintiffs 3 filed lawsuits against the federal\ngovernment 4 to enjoin the border barrier projects and to\ndeclare the San Diego and Calexico Waivers unlawful. The\ndistrict court consolidated the suits, finding that they shared\ncommon legal and factual issues. California and the\nenvironmental groups asserted three types of claims. The\n“ultra vires claims” alleged that DHS exceeded its statutory\nauthority in working on the border barrier projects and\nissuing the related waivers, thus violating the Administrative\nProcedure Act (“APA”), 5 U.S.C. § 551 et seq. The\n“environmental claims” alleged that in planning and\nbuilding the border barrier projects, DHS violated\nenvironmental laws. 5 Finally, the “constitutional claims”\nalleged that the waivers violated the U.S. Constitution.\n\n On cross-motions, the district court granted summary\njudgment to DHS. The district court concluded that\nIIRIRA’s jurisdictional bar, see § 102(c)(2)(A), prevented it\n\n 3\n The Plaintiffs-Appellants (collectively “California and the\nenvironmental groups”) are: (1) the State of California and the California\nCoastal Commission (collectively “California”); (2) the Center for\nBiological Diversity (“CBD”); and (3) the Defenders of Wildlife, the\nSierra Club, and the Animal Legal Defense Fund (collectively the\n“Coalition”).\n\n 4\n The Defendants-Appellees (collectively “DHS” or “the\nGovernment”) are: the United States of America; the U.S. Department\nof Homeland Security; U.S. Customs and Border Protection; Secretary\nKirstjen Nielsen, in her official capacity; and Commissioner Kevin K.\nMcAleenan, in his official capacity.\n\n 5\n California and the environmental groups alleged that DHS violated\nthe National Environmental Policy Act, 42 U.S.C. § 4321 et seq.\n(“NEPA”), the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq.\n(“CZMA”), and the APA. DHS acknowledged that it did not comply\nwith NEPA or CZMA requirements.\n\n12 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\nfrom hearing the non-constitutional claims. The district\ncourt went on to reject the constitutional claims.\n\n California, CBD, and the Coalition each appealed the\ndistrict court’s judgments as to the ultra vires and\nenvironmental claims, but not their constitutional claims.\nWe consolidated the three appeals.\n\n ANALYSIS\n\nI. STANDARD OF REVIEW\n\n We review the district court’s grant of summary\njudgment de novo. Wolfe v. BNSF Ry. Co., 749 F.3d 859,\n863 (9th Cir. 2014). We must “determine, viewing the\nevidence in the light most favorable to the non-moving party,\nwhether there are any genuine issues of material fact and\nwhether the district court correctly applied the relevant\nsubstantive law.” Citicorp Real Estate, Inc. v. Smith,\n155 F.3d 1097, 1103 (9th Cir. 1998). In doing so, we do “not\nweigh the evidence or determine the truth of the matter but\nonly determine whether there is a genuine issue for trial.” Id.\n\nII. JURISDICTION\n\n The threshold question is whether we have jurisdiction\nto hear this appeal. The answer depends on the scope of\nIIRIRA’s jurisdictional bar and direct review provisions.\n\n We begin with the language of the statute, which\nprovides:\n\n The district courts of the United States shall\n have exclusive jurisdiction to hear all causes\n or claims arising from any action undertaken,\n or any decision made, by the Secretary of\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 13\n\n Homeland Security pursuant to paragraph\n (1). A cause of action or claim may only be\n brought alleging a violation of the\n Constitution of the United States. The court\n shall not have jurisdiction to hear any claim\n not specified in this subparagraph.\n\n§ 102(c)(2)(A) (emphasis added). Paragraph (1), IIRIRA’s\nwaiver provision, states:\n\n Notwithstanding any other provision of law,\n the Secretary of Homeland Security shall\n have the authority to waive all legal\n requirements such Secretary, in such\n Secretary’s sole discretion, determines\n necessary to ensure expeditious construction\n of the barriers and roads under this section.\n Any such decision by the Secretary shall be\n effective upon being published in the Federal\n Register.\n\n§ 102(c)(1).\n\n Section 102(c)(2)(C) provides for direct review of the\ndistrict court’s decision by the Supreme Court: “An\ninterlocutory or final judgment, decree, or order of the\ndistrict court may be reviewed only upon petition for a writ\nof certiorari to the Supreme Court of the United States.”\n\n The statutory directive is clear:\n\n • IIRIRA vests district courts with exclusive\n jurisdiction to hear claims “arising from” actions\n undertaken or decisions made “pursuant to” the\n waiver provision.\n\n14 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n • This exclusive jurisdiction over claims “arising\n from” the waiver provision is limited to\n constitutional violations; there is no judicial review\n of non-constitutional claims “arising from” the\n waiver provision.\n\n • The direct review provision applies only to those\n claims subject to the district courts’ exclusive\n jurisdiction.\n\n The jurisdictional bar and direct review provisions cover\nonly claims “arising from” paragraph (1)’s waiver provision.\nInterpreting their scope requires determining when a claim\n“aris[es] from” the waiver provision.\n\n A claim does not “aris[e] from” the waiver provision\nsimply because it is related to or concerned with the\nSecretary’s waiver determinations. The language used in\nsection 102(c)(2)(A) requires more. The Ninth Circuit has\nnoted that a related phrase, “arising out of,” is “ordinarily\nunderstood to mean ‘originating from,’ ‘having its origin in,’\n‘growing out of’ or ‘flowing from’ or in short, ‘incident to,\nor having connection with.’” See In re Tristar Esperanza\nProps., LLC, 782 F.3d 492, 497 (9th Cir. 2015) (quoting\nUnderwriters at Lloyd’s of London v. Cordova Airlines, Inc.,\n283 F.2d 659, 664 (9th Cir. 1960)). Accordingly, a claim\n“aris[es] from” an “action undertaken” or “decision made[ ]\nby the Secretary . . . pursuant to” the waiver provision only\nwhen the claim originates or stems from a section 102(c)(1)\nwaiver determination. 6 Whether the jurisdictional bar\n\n 6\n In isolation, the reference in Tristar to “having connection with”\nmight support a broader reading of this nexus requirement. 782 F.3d at\n497. However, context is key: the phrase follows four illustrative\ndefinitions, each describing an originating relationship, and then the\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 15\n\napplies to California and the environmental groups’ claims\nrequires us to assess whether each claim “aris[es] from” the\nSecretary’s waiver determinations.\n\n One set of ultra vires claims alleges that the border\nbarrier projects are not authorized by the grant of barrier- and\nroad-building authority in sections 102(a) and 102(b). They\nchallenge the scope of the Secretary’s authority to build\nroads and walls under sections 102(a) and 102(b), not the\nscope of waiver authority under section 102(c). These\nclaims thus “aris[e] from” sections 102(a) and 102(b), not\nsection 102(c). Their origin is the initial decision to build\nthe border barrier projects, not the later decision to issue a\nwaiver related to those projects. In the absence of any\nrelationship between these claims and the waiver provision,\nthere is no plausible interpretation of “aris[es] from” that\nbrings these claims under the jurisdictional bar. On the other\nhand, a second set of ultra vires claims alleges the waivers\nthemselves were not authorized by the Secretary’s authority\nunder section 102(c)(1). See, e.g., Second Am. Compl. at\n34–38, In re: Border Infrastructure Envtl. Litig., No. 3:17-\ncv-01215-GPC-WVG (S.D. Cal. Sept. 6, 2017). These\nclaims do “arise from” the Secretary’s waiver determination,\nso the district court correctly found that the jurisdictional bar\napplies. 7\n\n\nqualifier, “in short,” which indicates that any subsequent terms are a\nmere rephrasing of the preceding substantive definitions.\n\n 7\n The district court was also correct in reasoning that the exception\nlaid out in Leedom v. Kyne, 358 U.S. 184 (1958), does not create\njurisdiction over these claims. Leedom’s extremely narrow exception\nwould apply only if the waivers violated “‘clear and mandatory’\nstatutory language.” Pac. Mar. Ass’n v. NLRB, 827 F.3d 1203, 1208 (9th\nCir. 2016) (quoting Leedom, 358 U.S. at 188). Contrary to California\n\n16 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n The environmental claims allege the planning and\nconstruction of the border barrier projects violated various\nenvironmental laws. To the extent these claims challenge\neither the merits of the waivers themselves, or the\nSecretary’s authority to issue the waivers under\nsection 102(c), they are subject to the jurisdictional bar. But,\nthe analysis is different for the environmental claims that\n“aris[e] from” alleged violations of NEPA, CZMA, and the\nAPA during the planning and construction of the border\nbarrier projects. At least some of the environmental claims\nclearly fall into this latter category. For example, CBD\nraised NEPA and APA claims before the Secretary published\nthe San Diego or Calexico Waivers, meaning the waivers\ncould not possibly have been the source of these claims. See\nFirst Am. Compl. at 3–4, 23–32, In re: Border Infrastructure\nEnvtl. Litig., No. 3:17-cv-01215-GPC-WVG (S.D. Cal. July\n7, 2017). To be sure, a valid waiver of the relevant\nenvironmental laws under section 102(c) is an affirmative\ndefense to all the environmental claims. 8 But the fact that\nthe waivers may be dispositive of the environmental claims\ndoes not make a waiver the origin of those claims.\n\n\n\nand the environmental groups’ reading, it is far from “clear” that\nsection 102(c)(1) does not authorize the waivers. By authorizing any\nwaiver “necessary to ensure expeditious construction of the barriers and\nroads under this section,” section 102(c)(1) authorizes waivers to\nfacilitate construction authorized by section 102(a), including the border\nbarrier projects.\n\n 8\n California and the environmental groups point out that the\nenvironmental review requirements for NEPA and CZMA became\neffective for the border barrier projects before the agency issued the\nwaivers. But the waiver provision says nothing about when the agency\nmust invoke its authority, and we strain to see what relief could be\ngranted once DHS issued the waivers.\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 17\n\n The black letter law of federal question jurisdiction\nillustrates why any other outcome would be at odds with\nwell-accepted principles. Under 28 U.S.C. § 1331, district\ncourts have jurisdiction over all cases “arising under the\nConstitution, laws, or treaties of the United States.” A case\ndoes not “aris[e] under the Constitution, laws, or treaties of\nthe United States” just because a defendant invokes a federal\ndefense. See Louisville & Nashville R.R. v. Mottley,\n211 U.S. 149, 152 (1908). For the same reason, the\nenvironmental claims do not “aris[e] from” the Secretary’s\nwaiver determinations merely because those waivers could\nprovide the Secretary with a viable defense.\n\n Finally, the constitutional claims, which allege that the\nwaiver determinations themselves violate the U.S.\nConstitution, do “aris[e] from” the waiver determinations.\nSee, e.g., Compl. at 23, Defs. of Wildlife v. DHS, No. 3:17-\ncv-01873-GPC-WVG (S.D. Cal. Sept. 14, 2017) (arguing\nthe San Diego and Calexico Waivers violate the Presentment\nClause). Because these claims grow out of the waiver\ndeterminations, IIRIRA’s jurisdictional bar applies. The\ndistrict court had exclusive jurisdiction to hear those claims,\nand any appeal must be direct to the Supreme Court pursuant\nto section 102(c)(2)(C). It is no surprise that California and\nthe environmental groups did not appeal the constitutional\nclaims to the Ninth Circuit. 9\n\n The jurisdictional bar and direct review provisions have\nno bearing on the ultra vires and environmental claims that\n\n 9\n The Animal Legal Defense Fund, CBD, and Defenders of Wildlife\nfiled a petition for certiorari raising the constitutional claims, which the\nSupreme Court denied. Animal Legal Def. Fund v. DHS, 139 S. Ct. 594\n(2018).\n\n18 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\ndo not “aris[e] from” the waiver determination. 10 The\ndistrict court had jurisdiction to review these federal claims\nunder 28 U.S.C. § 1331. We, in turn, have jurisdiction to\nconsider this appeal from the “final decision[ ] of the district\ncourt[ ]” under 28 U.S.C. § 1291.\n\n Nor does the APA bar our review. California and the\nenvironmental groups seek relief for their ultra vires and\nenvironmental claims pursuant to the APA’s cause of action.\nSee 5 U.S.C. § 702. DHS argues those claims are\nunreviewable because waiver determinations are made in the\nSecretary’s “sole discretion,” IIRIRA § 102(c)(1), which\nmeans they are “committed to agency discretion by law” and\ntherefore exempt from the APA’s cause of action. See\n5 U.S.C. § 701(a)(2). However, this argument sidesteps the\nessence of the claims—that the border barrier projects are\nnot authorized under section 102(a) or 102(b). The predicate\nlegal question of statutory authority is not committed to\nagency discretion, so California and the environmental\ngroups’ claims are reviewable.\n\n Because neither IIRIRA nor the APA bar our review, we\nturn to the merits of the ultra vires and environmental\nclaims.\n\nIII. DHS HAS AUTHORITY TO CONSTRUCT THE\n BORDER BARRIER PROJECTS\n\n As noted, the ultra vires and environmental claims rely\non the APA, which provides the analytical framework for\nconsidering these claims. Under the APA, the operative\n 10\n This conclusion follows from the plain language of IIRIRA. The\nstrong presumption of judicial review of agency action further supports\nthis outcome. See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131,\n2140 (2016).\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 19\n\nquestion is whether the agency action is “arbitrary,\ncapricious, an abuse of discretion, or otherwise not in\naccordance with law,” or “in excess of statutory jurisdiction,\nauthority, or limitations, or short of statutory right.”\n5 U.S.C. § 706(2)(A), (C). The ultra vires claims relevant\nhere allege DHS exceeded its statutory authority under\nsections 102(a) and 102(b). The environmental claims\nallege the border barrier projects are “not in accordance with\nlaw” because their planning and construction violated NEPA\nand CZMA.\n\n Section 102(a) vests the Secretary with authority to “take\nsuch actions as may be necessary to install additional\nphysical barriers and roads (including the removal of\nobstacles to detection of illegal entrants) in the vicinity of\nthe United States border to deter illegal crossings in areas of\nhigh illegal entry into the United States.”\n\n A. The border barrier projects are “additional\n physical barriers.”\n\n The Secretary authorized the San Diego and Calexico\nProjects because the existing barriers in those areas were\nbuilt in the 1990s using a fence design “that is no longer\noptimal for Border Patrol operations.” 82 Fed. Reg. 35,985,\n42,830. According to DHS, the new construction erects\nstronger and taller barriers. The Calexico Project will\nreplace “[t]he existing fourteen foot, landing mat-style\nfencing . . . with an eighteen to twenty-five foot barrier that\nemploys a more operationally effective design.” Id. at\n42,830. Similarly, the San Diego Project “will replace\nexisting primary fencing” with a “new primary barrier” that\n“use[s] an operationally effective design.” Id. at 35,984–85.\nThese are “additional physical barriers.”\n\n20 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n California and the environmental groups argue that the\nSan Diego and Calexico Projects—which replace existing\nborder fencing—are not authorized under section 102(a)\nbecause that section only applies to “additional physical\nbarriers.” 11 They urge that “Congress understood the phrase\n‘install additional barriers’ to mean the construction of\nbarriers that would add to the total miles of already existing\nfences by installing new barriers where none existed at the\ntime.”\n\n The plain language of section 102(a) suggests no such\nlimitation. In simple terms, “additional” means\n“supplemental.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d\n1467, 1472–73 (9th Cir. 1993) (quoting Town of Burlington\nv. Dep’t of Educ., 736 F.2d 773, 790 (1st Cir. 1984)). A\n“barrier” is “a material object or set of objects that separates,\nkeeps apart, demarcates, or serves as a unit or barricade.”\nSee Barrier, Webster’s New Int’l Dictionary of the English\nLanguage (3d ed. 1993). Combining the plain meaning of\n“additional” and “barrier” yields a “supplemental material\nobject or set of objects that separates, keeps apart,\ndemarcates, or serves as a unit or barricade.” A replacement\nfence fits comfortably within that definition.\n\n That the statutory grant of authority extends beyond\n“install[ing] additional physical barriers” to “tak[ing] such\nactions as may be necessary to install additional physical\nbarriers and roads” further supports this conclusion. IIRIRA\n§ 102(a) (emphasis added). “[S]uch actions” include\n“remov[ing] . . . obstacles to detection of illegal entrants.”\nId. It follows that authorization to “remov[e] . . . obstacles”\nand take other “actions . . . necessary to install . . . barriers\n\n 11\n They do not dispute that the Prototype Project is an “additional\nphysical barrier.”\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 21\n\nand roads” extends beyond the erection of entirely new\nbarriers and encompasses the maintenance, enhancement,\nand replacement of existing barriers.\n\n Common sense also supports our analysis. To suggest\nthat Congress would authorize DHS to build new border\nbarriers but (impliedly) prohibit the maintenance, repair, and\nreplacement of existing ones makes no practical sense. See\nGriffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575\n(1982) (“[I]nterpretations of a statute which would produce\nabsurd results are to be avoided if alternative interpretations\nconsistent with the legislative purpose are available.”).\n\n B. The projects are “in areas of high illegal entry\n into the United States.”\n\n The San Diego and Calexico Waivers cited data\ndemonstrating that the border barrier projects are “in areas\nof high illegal entry.” IIRIRA § 102(a); 82 Fed. Reg.\n35,984, 42,830. In the U.S. Border Patrol’s San Diego\nSector, the location of the Prototype and San Diego Projects,\nthe Border Patrol apprehended over 31,000 undocumented\nimmigrants and seized approximately 9,167 pounds of\nmarijuana and 1,317 pounds of cocaine in fiscal year 2016.\n82 Fed. Reg. 35,984. In the El Centro Sector, the location of\nthe Calexico Project, the U.S. Border Patrol apprehended\nover 19,000 undocumented immigrants and seized\napproximately 2,900 pounds of marijuana and 126 pounds\nof cocaine over the same period. Id. at 42,830. This is ample\nevidence of “high illegal entry” in these areas.\n\n California and the environmental groups nonetheless\ncontend the San Diego and Calexico Projects are not\nauthorized by section 102(a) because they are not “in areas\nof high illegal entry into the United States.” They do not\ndispute the evidence of “illegal entry” provided by DHS.\n\n22 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\nNor do they dispute that the number of undocumented\nimmigrants apprehended and the amount of illegal narcotics\nseized are objectively “high.” Instead, they assert that the\nSan Diego and El Centro statistics are not comparably\n“high” when measured against other sectors on the\nsouthwest border or the rates of illegal entry in these sectors\nin the past.\n\n However, IIRIRA does not dictate that “high illegal\nentry” is a comparative determination. Absent qualification,\n“high illegal entry” means what it says. The fact that there\nare areas with “higher illegal entry” says nothing about\nwhether the San Diego and El Centro sectors are “areas of\nhigh illegal entry.” Even assuming that “areas of high illegal\nentry” are identified relative to other border sectors, San\nDiego and El Centro are in the top 35% of border sectors\nwith respect to the number of undocumented immigrants\napprehended. Finally, to the extent the challenge targets the\nSecretary’s discretion in selecting where to exercise her\nauthority under section 102(a), such an inquiry is foreclosed\nby IIRIRA’s bar on probing the merits of a waiver\ndetermination, § 102(c)(2), and the APA’s bar on reviewing\ndiscretionary agency action, 5 U.S.C. § 701(a)(2).\n\n C. Section 102(b) does not impose limits on\n Section 102(a)’s broad grant of authority.\n\n Having determined that section 102(a)’s grant of\nauthority encompasses the border barrier projects, we next\nconsider whether section 102(b) imposes limits on that\nbroad grant of authority. Section 102(b) provides in relevant\npart:\n\n (1) Additional fencing along southwest\n border.—\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 23\n\n (A) Reinforced fencing.—In carrying out\n subsection (a), the Secretary of\n Homeland Security shall construct\n reinforced fencing along not less than\n 700 miles of the southwest border where\n fencing would be most practical and\n effective and provide for the installation\n of additional physical barriers, roads,\n lighting, cameras, and sensors to gain\n operational control of the southwest\n border.\n\n (B) Priority areas.—In carrying out this\n section, the Secretary of Homeland\n Security shall—\n\n (i) identify the 370 miles, or other\n mileage determined by the Secretary,\n whose authority to determine other\n mileage shall expire on December 31,\n 2008, along the southwest border\n where fencing would be most\n practical and effective in deterring\n smugglers and aliens attempting to\n gain illegal entry into the United\n States; and\n\n (ii) not later than December 31, 2008,\n complete construction of reinforced\n fencing along the miles identified\n under clause (i).\n\n The question is whether the fencing requirements and\ndeadlines in section 102(b) establish limits applicable to\nsection 102(a). They do not. Section 102(b)’s provisions for\n\n24 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\npriority projects do not swallow section 102(a)’s\nindependent authorization to build “additional physical\nbarriers.” Congress’s alternative use of the phrases “[i]n\ncarrying out subsection (a)” and “this section” indicates that\nsection 102(b) applies to some but not all of the construction\nauthorized by section 102(a). In other words, section 102(a)\nis most plausibly read as a broad grant of authority to build\nborder infrastructure, while section 102(b) merely denotes\ncertain priority projects Congress intended DHS to complete\nfirst. Limits on the priority projects apply to those projects\nalone, not the wider universe of construction authorized by\nsection 102(a).\n\n The “general/specific canon” of statutory construction\ndoes not require a different interpretation. That canon\nprovides that when two conflicting provisions cannot be\nreconciled, the more specific provision should be treated as\nan exception to the general rule. See Antonin Scalia & Bryan\nA. Gardner, Reading Law 183 (2012). Herein lies the rub.\nSections 102(a) and 102(b) do not conflict. See Marx v. Gen.\nRevenue Corp., 568 U.S. 371, 386–87 (2013) (explaining\nthat, because the case did not fall within the specific\nprovision, it was governed by the general provision and the\n“general/specific canon” was inapplicable).\n\n Finally, the narrow interpretation offered by California\nand the environmental groups renders section 102(a)\nsuperfluous. If section 102(b) defines the entire scope of\nDHS’s authority to build border infrastructure projects under\nsection 102, section 102(a) would lack any independent\neffect. “[W]e are hesitant to adopt an interpretation of a\ncongressional enactment which renders superfluous another\nportion of that same law.” Mackey v. Lanier Collection\nAgency & Serv., Inc., 486 U.S. 825, 837 (1988).\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 25\n\n In short, the plain text of section 102(a) grants DHS\nauthority to construct the Prototype, San Diego, and\nCalexico Projects, and that grant of authority is not limited\nby section 102(b). The district court correctly granted DHS\nsummary judgment on the ultra vires claims.\n\n Having determined that the border barrier projects were\nauthorized under section 102(a), we have little trouble\nconcluding that the environmental claims were also properly\ndismissed. The Secretary has waived the legal requirements\nthat California and the environmental groups allege DHS\nviolated. See 82 Fed. Reg. 35,985 (waiving application of\nNEPA, CZMA, and the APA to the San Diego and Prototype\nProjects); id. at 42,830 (waiving application of NEPA and\nthe APA to the Calexico Project). And of course, we lack\njurisdiction to consider any argument challenging the\nwaivers themselves.\n\n Finally, California and the environmental groups argue\nthat because their environmental claims challenge DHS’s\nplans to replace fourteen miles of secondary fencing in San\nDiego, and DHS concedes that the San Diego Waiver did not\nextend to those plans, the San Diego Waiver does not\nprovide a defense to the environmental claims as applied to\nthe secondary fencing. We need not reach this challenge\nbecause, as of the time of this appeal, DHS’s plans to replace\nthe secondary fencing, including whether to comply with\nNEPA and CZMA, are not yet “final” agency actions for\npurposes of the APA. See 5 U.S.C. § 704 (“Agency action\nmade reviewable by statute and final agency action for\nwhich there is no other adequate remedy in a court are\nsubject to judicial review.” (emphasis added)); Bennett v.\nSpear, 520 U.S. 154, 177–78 (1997) (explaining that final\nagency action both represents the consummation of the\nagency’s decision-making process and has legal effect).\n\n26 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n CONCLUSION\n\n The plain language of section 102 dictates the outcome\nof this appeal. We have jurisdiction to consider California\nand the environmental groups’ ultra vires and environmental\nclaims to the extent those claims do not “aris[e] from” the\nSecretary’s waiver determinations under section 102(c).\nThe Prototype, San Diego, and Calexico Projects are\nauthorized under section 102(a)’s broad grant of authority,\nwhich is not limited by section 102(b). The environmental\nclaims are precluded by the Secretary’s waiver of NEPA,\nCZMA, and the APA.\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366791/", "author_raw": "McKEOWN, Circuit Judge:"}, {"author": "CALLAHAN, Circuit Judge, dissenting", "type": "dissent", "text": "CALLAHAN, Circuit Judge, dissenting:\n\n If we could reach the merits of these appeals, I would\nconcur in my colleagues’ opinion. But I read Section 102 of\nthe Illegal Immigration Reform and Immigrant\nResponsibility Act of 1996 (“IIRIRA”) as limiting review of\nthe district court’s decision to review by certiorari in the\nSupreme Court. Accordingly, I would dismiss these appeals.\n\n As noted by my colleagues, we begin with the language\nof the statute:\n\n (c) Waiver.—\n\n (1) In general.—Notwithstanding any other\n provision of law, the Secretary of Homeland\n Security shall have the authority to waive all\n legal requirements such Secretary, in such\n Secretary’s sole discretion, determines\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 27\n\n necessary to ensure expeditious construction\n of the barriers and roads under this section.\n Any such decision by the Secretary shall be\n effective upon being published in the Federal\n Register.\n\n (2) Federal court review.—\n\n (A) In general.—The district courts of the\n United States shall have exclusive\n jurisdiction to hear all causes or claims\n arising from any action undertaken, or any\n decision made, by the Secretary of Homeland\n Security pursuant to paragraph (1). A cause\n of action or claim may only be brought\n alleging a violation of the Constitution of the\n United States. The court shall not have\n jurisdiction to hear any claim not specified in\n this subparagraph.\n\n (B) Time for filing of complaint. . . .\n\n (C) Ability to seek appellate review.—An\n interlocutory or final judgment, decree, or\n order of the district court may be reviewed\n only upon petition for a writ of certiorari to\n the Supreme Court of the United States.\n\nIIRIRA § 102(c).\n\n Section 102(c)(2)(A) first provides that district courts\n“shall have exclusive jurisdiction to hear all causes or claims\narising from any action undertaken , or any decision made,\nby the Secretary of Homeland Security pursuant to\nparagraph (1),” and then states “[a] cause of action or claim\n\n28 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\nmay only be brought alleging a violation of the Constitution\nof the United States.” My colleagues do not think that the\nsecond clause modifies the district court’s jurisdiction.\nRather, the majority holds that the district court has\njurisdiction to consider not just plaintiffs’ constitutional\nclaims, but also their ultra vires claims.\n\n I have questions as to the majority’s interpretation of the\nstatute, but recognize that the presumption that Congress\ndoes not intend to deny all judicial review arguably provides\na basis for the district court considering the plaintiffs’ ultra\nvires claims. See Leedom v. Kyne, 358 U.S. 184, 190 (1958)\n(noting that courts “cannot lightly infer that Congress does\nnot intend judicial protection of rights it confers against\nagency action taken in excess of delegated powers.”).\n\n But even accepting that the district court may consider\nsome of plaintiffs’ ultra vires claims, we do not have\njurisdiction to review its decision. Section 102(c)(2)(C)’s\ndirection is clear and unequivocal: “An interlocutory or final\njudgment, decree, or order of the district court may be\nreviewed only upon petition for a writ of certiorari to the\nSupreme Court of the United States.” It covers all\nconceivable decisions by a district court: orders, decrees, and\ninterlocutory and final judgments. It states that review is\n“only upon petition for a writ of certiorari.” IIRIRA\n§ 102(c)(2)(C). I read this subsection as requiring that for\nall actions filed in a district court that arise “from any action\nundertaken, or any decision made, by the Secretary of\nHomeland Security pursuant to paragraph (1),” appellate\nreview is limited to the Supreme Court. IIRIRA § 102(c)(1).\nMoreover, as Congress has provided for appellate review,\nthere is no reason not to abide by the statute’s plain intent.\nSee Flores-Miramontes v. I.N.S., 212 F.3d 1133, 1136 (9th\nCir. 2000) (noting that if plaintiff “can raise his claims\n\n IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 29\n\nelsewhere . . . we need not read an exception into the\njurisdiction-stripping provision at issue.”).\n\n The majority circumvents the statute’s restriction on\nappellate jurisdiction by arguing that the ultra vires claims\ndo not “arise out of” the Secretary’s waiver of legal\nrequirements under § 102(c)(1). This ignores the obvious\nthrust of the plaintiffs’ complaints, which challenge the\nSecretary’s authority to “waive all legal requirements” on\nboth constitutional and statutory grounds. Indeed, their\nclaims under the National Environmental Policy Act,\n42 U.S.C. § 4321 et. seq., the Administrative Procedure Act,\n5 U.S.C. § 551 et. seq., and the Coastal Zone Management\nAct, 16 U.S.C. § 1451 et. seq., primarily assert that the\nSecretary cannot waive the procedural requirements of those\nstatutes.\n\n It is true that plaintiffs’ assertions that the Secretary lacks\nany authority to construct border walls are arguably separate\nfrom plaintiffs’ arguments concerning the Secretary’s ability\nto waive legal requirements. But these are weak secondary\narguments that the district court and the majority correctly\nreject. These are arguments that would be raised at different\ntimes, possibly in different fora, but for the Secretary’s\nexercise of authority under § 102(c)(1). Moreover, the\ndistrict court’s rejection of collateral or secondary arguments\nin litigation that primarily challenge the Secretary’s exercise\nof authority under § 102(c)(1) remains subject to the\nappellate restriction in § 102(c)(2)(C). One of the purposes\nof the restriction on appellate jurisdiction is to expedite\nappellate review and this purpose is compromised if the\nlosing parties are allowed to seek review of some issues in\nthe court of appeal and others in the Supreme Court.\n\n30 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.\n\n Accordingly, I dissent from the majority’s opinion\nbecause § 102(c)(2)(C) restricts appellate review of the\ndistrict court’s decisions in these cases to the Supreme Court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366791/", "author_raw": "CALLAHAN, Circuit Judge, dissenting"}]}	M MARGARET MCKEOWN	CONSUELO M CALLAHAN	JACQUELINE H NGUYEN	1	{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589538/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
9,022,988	IN RE BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION, Center for Biological Diversity, and Defenders of Wildlife, a Nonprofit Conservation Organization Sierra Club, a Nonprofit Public Benefit Corporation Animal Legal Defense Fund People of the State of California, By and Through Xavier Becerra, Attorney General California Coastal Commission v. U.S. Department of Homeland Security U.S. Customs and Border Protections Kirstjen Nielsen, Secretary, in Her Official Capacity Kevin K. McAleenan, Commissioner, in His Official Capacity, In re Border Infrastructure Environmental Litigation, Center for Biological Diversity People of the State of California, By and Through Xavier Becerra, Attorney General California Coastal Commission, and Defenders of Wildlife, a Nonprofit Conservation Organization Sierra Club, a Nonprofit Public Benefit Corporation Animal Legal Defense Fund v. U.S. Department of Homeland Security U.S. Customs and Border Protections Kirstjen Nielsen, Secretary, in Her Official Capacity Kevin K. McAleenan, Commissioner, in His Official Capacity, In re Border Infrastructure Environmental Litigation, Center for Biological Diversity Defenders of Wildlife, a Nonprofit Conservation Organization Sierra Club, a Nonprofit Public Benefit Corporation Animal Legal Defense Fund, and People of the State of California, By and Through Xavier Becerra, Attorney General California Coastal Commission v. U.S. Department of Homeland Security U.S. Customs and Border Protections Kirstjen Nielsen, Secretary, in Her Official Capacity Kevin K. McAleenan, Commissioner, in His Official Capacity	Border Infrastructure Envtl. Litig. v. U.S. Dep't of Homeland Sec.	2019-02-11	No. 18-55474; No. 18-55475; No. 18-55476	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Callahan, McKeown", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016225/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016226/", "author_raw": ""}]}	CALLAHAN	MCKEOWN	CALLAHAN	1	{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022988/	Published	0	1	0	0	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,207		Istvan Szonyi v. Matthew Whitaker	2019-02-13	15-73514	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.", "parties": "", "opinions": [{"author": "CLIFTON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nISTVAN SZONYI, No. 15-73514\n Petitioner,\n Agency No.\n v. A010-977-327\n\nMATTHEW G. WHITAKER,\nActing Attorney General, OPINION\n Respondent.\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted October 10, 2018\n Portland, Oregon\n\n Filed February 13, 2019\n\n Before: Raymond C. Fisher, Richard R. Clifton,\n and Consuelo M. Callahan, Circuit Judges.\n\n Opinion by Judge Clifton;\n Dissent by Judge Fisher\n\n2 SZONYI V. WHITAKER\n\n SUMMARY\n\n\n Immigration\n\n Denying Istvan Szonyi’s petition for review of a decision\nof the Board of Immigration Appeals, the panel upheld the\nBIA’s interpretation of the phrase, “single scheme of criminal\nmisconduct,” which operates as an exception to the ground of\nremoval, under 8 U.S.C. § 1227(a)(2)(A)(ii), for a person who\nhas been convicted of “two or more crimes involving moral\nturpitude, not arising out of a single scheme of criminal\nmisconduct.”\n\n In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the\nBIA affirmed the following interpretation of the phrase\n“single scheme of criminal misconduct”: “when an alien has\nperformed an act, which, in and of itself, constitutes a\ncomplete, individual, and distinct crime, he is deportable\nwhen he again commits such an act, even though one may\nclosely follow the other, be similar in character, and even be\npart of an overall plan of criminal misconduct.” The BIA\nsaid that it would apply this interpretation in all circuits\nexcept those that had adopted more expansive interpretations.\nThat exception applied to this circuit, whose previous\ninterpretation of the phrase encompassed distinct crimes that\nwere part of the same overall plan. However, in Matter of\nIslam, 25 I. & N. Dec. 637 (BIA 2011), the BIA announced\nthat it would apply the interpretation from Matter of Adetiba\nin all circuits.\n\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n SZONYI V. WHITAKER 3\n\n Szonyi, a lawful permanent resident, forced three women\nto commit sexual acts under threat of violence over a five- to\nsix-hour period. For those acts, Szonyi pled guilty to two\ncounts of oral copulation in violation of California Penal\nCode § 288a(c) and two counts of sexual penetration with a\nforeign object in violation of California Penal Code § 289.\nBased on these offenses, the BIA ultimately concluded that\nSzonyi was removable because his crimes did not arise out of\na single scheme under BIA precedent.\n\n The panel rejected Szonyi’s argument that this court’s\nprecedent forecloses the BIA’s interpretation of the phrase\n“single scheme of criminal misconduct,” upholding the BIA’s\ninterpretation under principles of deference under Chevron\nU.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837\n(1984). As a preliminary matter, the panel concluded that,\nbecause the BIA’s position appeared to be set based on its\nopinion in Matter of Islam at the time of Szonyi’s\nproceedings, Szonyi did not have to exhaust his challenge to\nthe BIA’s interpretation.\n\n Observing that, under Nat’l Cable & Telecomms. Ass’n v.\nBrand X Internet Servs., 545 U.S. 967 (2005), the court does\nnot defer, under Chevron, where a prior court decision holds\nthat its construction follows from the unambiguous terms of\nthe statute, the panel concluded that no circuit precedent held\nthat the text of the statute unambiguously foreclosed the\nBIA’s interpretation here. The panel also rejected Szonyi’s\ncontentions that the BIA’s interpretation was impermissible\nbased on congressional intent and constitutional avoidance.\nWith respect to the latter issue, the panel explained that the\nSupreme Court’s recent vagueness jurisprudence is\ndistinguishable from the present case.\n\n4 SZONYI V. WHITAKER\n\n The panel also rejected Szonyi’s argument that, even if\nthe BIA’s construction of the statute was permissible, the\nagency could not retroactively apply that standard to this\ncase. Analyzing the relevant factors set out by Montgomery\nWard & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982), the panel\nconcluded that, on balance, the retroactive application of the\nBIA’s interpretation was not improper. The panel further\nrejected Szonyi’s argument that, even under BIA precedent\nhe was not removable, concluding that the BIA’s analysis was\nconsistent with its precedent.\n\n Finally, the panel upheld the agency’s denial of\ndiscretionary relief, rejecting Szonyi’s contention that the\nBIA failed to consider all favorable and unfavorable factors\nbearing on his eligibility.\n\n Dissenting, Judge Fisher disagreed with the majority’s\nconclusion that the BIA reasonably applied its precedent to\nthis case. Judge Fisher wrote that BIA precedent squarely\nholds that two or more crimes committed during a single\ncriminal episode arise from a single scheme of criminal\nconduct unless they are marked by a “substantial interruption\nthat would allow the participant to disassociate himself from\nhis enterprise and reflect on what he has done” between\ncrimes. Judge Fisher would grant the petition for review and\nremand to the BIA for an adequate explanation because it\ncannot be discerned from the record whether or how the BIA\napplied this precedent in this case, where the petitioner’s\ncrimes were part of a single and continuous criminal episode,\nand there was nothing in the record to suggest there was a\n“substantial interruption” between the crimes.\n\n SZONYI V. WHITAKER 5\n\n COUNSEL\n\nDavid Timothy Raimer (argued), Jones Day, Washington,\nD.C.; Meir Feder, Jones Day, New York, New York; for\nPetitioner.\n\nLeslie McKay (argued), Senior Litigation Counsel; Terri J.\nScadron, Assistant Director; Office of Immigration\nLitigation, Civil Division, United States Department of\nJustice, Washington, D.C.; for Respondent.\n\nJennifer Lee Koh and Andrew Michael Knapp, Western State\nCollege of Law, Irvine, California, for Amicus Curiae\nAmerican Immigration Lawyers Association.\n\n\n OPINION\n\nCLIFTON, Circuit Judge:\n\n Istvan Szonyi petitions for review of a decision by the\nBoard of Immigration Appeals (“BIA”) upholding a final\norder of removal against him. This case presents the question\nof whether the BIA permissibly interpreted the phrase “single\nscheme of criminal misconduct” under 8 U.S.C.\n§ 1227(a)(2)(A)(ii). In that statute, the phrase operates as an\nexception to a ground for removal. Specifically, the statute\nprovides that a person is deportable if he has been convicted\nof “two or more crimes involving moral turpitude, not arising\nout of a single scheme of criminal misconduct.” We\npreviously adopted a different, broader interpretation of the\nphrase in Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959), an\ninterpretation we reaffirmed in Gonzalez-Sandoval v. INS,\n910 F.2d 614 (9th Cir. 1990), and Leon-Hernandez v. INS,\n\n6 SZONYI V. WHITAKER\n\n926 F.2d 902 (9th Cir. 1991). Because the phrase in question\noperates as an exception to a ground for deportation, the\nBIA’s narrower definition of the exception serves to broaden\nthe application of the removal provision, making Szonyi\nsubject to removal when he might not have been under our\nprevious definition.\n\n We uphold the BIA’s interpretation under the principles\nof Chevron deference that apply when the BIA interprets\nimmigration laws. See Chevron U.S.A., Inc. v. Nat. Res. Def.\nCouncil, Inc., 467 U.S. 837, 842 (1984). We also conclude\nthat the BIA properly applied this interpretation here, and that\nthis application was not impermissibly retroactive. In\naddition, we uphold the BIA’s denial of discretionary relief,\nacknowledging the limitations on judicial review of\ndiscretionary decisions. See 8 U.S.C. § 1252(a)(2)(B)(i).\nAccordingly, we deny Szonyi’s petition for review.\n\nI. Background\n\n Szonyi is a citizen of Hungary who was admitted to the\nUnited States as a lawful permanent resident in 1957, when\nhe was four years old. In 1981, after a day of heavy drinking,\nhe forced three women to commit sexual acts under threat of\nviolence over a five- to six-hour period. For those acts,\nSzonyi pled guilty to two counts of oral copulation in\nviolation of California Penal Code § 288a(c) and two counts\nof sexual penetration with a foreign object in violation of\nCalifornia Penal Code § 289. Based on these offenses, the\ngovernment commenced removal proceedings against Szonyi\nin 2005, eventually charging him as removable because he\nhad been convicted of “two or more crimes involving moral\nturpitude, not arising out of a single scheme of criminal\nmisconduct” under 8 U.S.C. § 1227(a)(2)(A)(ii).\n\n SZONYI V. WHITAKER 7\n\n The immigration judge (“IJ”) sustained that charge. In a\nwritten order filed on September 19, 2011, the IJ found\nSzonyi removable because his predicate crimes involved\nmoral turpitude and did not arise out of a single scheme of\ncriminal misconduct under Ninth Circuit precedent. The IJ\nalso determined that the positive equities in Szonyi’s case did\nnot offset his adverse criminal history and therefore denied\nhis request for a waiver of inadmissibility and cancellation of\nremoval. The IJ ordered Szonyi’s removal to Hungary, and\nSzonyi timely appealed to the BIA.\n\n While Szonyi’s appeal was pending, the BIA issued a\nprecedential opinion in Matter of Islam, 25 I. & N. Dec. 637\n(BIA 2011), which announced that the BIA would apply its\npreferred interpretation of “single scheme of criminal\nmisconduct” in all circuits, including those that had\npreviously interpreted that phrase more expansively. Id. at\n641. In light of Matter of Islam, the BIA remanded Szonyi’s\nappeal to the IJ for analysis under the BIA’s “single scheme”\njurisprudence.\n\n On remand, the IJ again found Szonyi removable because\nhis crimes did not arise out of a single scheme under BIA\nprecedent. The IJ also incorporated by reference her earlier\ndecision (1) finding Szonyi removable under the Ninth\nCircuit’s standard and (2) denying discretionary relief. The\nBIA affirmed, finding Szonyi removable under the BIA’s\ninterpretation of the single scheme exception. The BIA also\nagreed with the IJ that Szonyi did not merit discretionary\nrelief.\n\n Szonyi filed a timely petition for review.\n\n8 SZONYI V. WHITAKER\n\nII. Removability\n\n Szonyi challenges the BIA’s conclusion that he is\nremovable because he has been convicted of “two or\nmore crimes involving moral turpitude, not arising out of\na single scheme of criminal misconduct.” 8 U.S.C.\n§ 1227(a)(2)(A)(ii). Szonyi argues that (1) the BIA’s\ninterpretation of the Immigration and Nationality Act\n(“INA”) is foreclosed by Ninth Circuit precedent; (2) the\nBIA’s interpretation is unreasonable; (3) even if the BIA’s\ninterpretation is permissible, it cannot be applied to him\nretroactively; and (4) even if the BIA’s interpretation is\npermissible, the BIA misapplied that interpretation to the\nfacts of his case. We are not persuaded by any of these\narguments.\n\n 1. BIA Interpretation of “Single Scheme of Criminal\n Misconduct”\n\n In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the\nBIA affirmed its longstanding interpretation of “single\nscheme of criminal misconduct” under § 1227(a)(2)(A)(ii),\nwhich it said would apply in all circuits except those that had\nadopted their own more expansive interpretation of the term.\nId. at 510. The BIA’s interpretation was that:\n\n when an alien has performed an act, which, in\n and of itself, constitutes a complete,\n individual, and distinct crime, he is deportable\n when he again commits such an act, even\n though one may closely follow the other, be\n similar in character, and even be part of an\n overall plan of criminal misconduct.\n\n SZONYI V. WHITAKER 9\n\nId. at 509. As noted above, the BIA later announced it would\napply the Adetiba standard uniformly across all circuits in\nMatter of Islam, 25 I. & N. Dec. at 641. Szonyi argues that\nNinth Circuit precedent forecloses the BIA’s interpretation.\n\n As a preliminary matter, the government argues that this\ncourt lacks jurisdiction to consider the permissibility of the\nBIA’s interpretation because Szonyi failed to exhaust this\nargument before the BIA. A petitioner’s failure to raise an\nargument before the BIA generally constitutes a failure to\nexhaust, thus depriving this court of jurisdiction to consider\nthe issue. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th\nCir. 2004). However, “[s]ome issues may be so entirely\nforeclosed by prior BIA case law that no remedies are\n‘available … as of right’ with regard to them before IJs and\nthe BIA.” Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004).\nWhere the agency’s position “appears already set” and\nrecourse to administrative remedies is “very likely” futile,\nexhaustion is not required. El Rescate Legal Servs., Inc. v.\nExec. Office of Immigration Review, 959 F.2d 742, 747 (9th\nCir. 1991). Because the BIA’s position appeared set based on\nits precedential opinion in Matter of Islam, 25 I. & N. Dec.\n637, Szonyi did not have to exhaust his challenge to the\nBIA’s interpretation, and we have jurisdiction to review his\nclaim.\n\n We review legal questions de novo. Chavez-Garcia v.\nSessions, 871 F.3d 991, 995 (9th Cir. 2017). When\nconsidering the BIA’s interpretation of the INA as set forth in\na published BIA opinion, we follow the two-step Chevron\nframework. Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815\n(9th Cir. 2016).\n\n10 SZONYI V. WHITAKER\n\n Under Chevron, we first ask “whether Congress has\ndirectly spoken to the precise question at issue.” 467 U.S. at\n842. If Congress has done so, the court “must give effect to\nthe unambiguously expressed intent of Congress.” Id. at 843.\nIf Congress has not specifically addressed the question, the\ncourt must defer to the agency’s interpretation if it is “based\non a permissible construction of the statute.” Id. This is true\neven if there is contrary circuit precedent, unless “the prior\ncourt decision holds that its construction follows from the\nunambiguous terms of the statute and thus leaves no room for\nagency discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand\nX Internet Servs., 545 U.S. 967, 982 (2005). Although this\ncircuit previously interpreted “single scheme” more broadly\nthan the BIA, no circuit precedent forecloses the BIA’s\ninterpretation.\n\n Szonyi argues that this court concluded in Wood, 266\nF.2d 825, that the BIA’s interpretation is incompatible with\nthe language of the statute. In Wood, we rejected the BIA’s\ninterpretation as “not what the statute says” because the BIA\n“applied the statute as if it read ‘single criminal act’” rather\nthan “single scheme of criminal misconduct.” 266 F.2d at\n830. Our decision also noted, however, that the INA did not\nitself define the term, and that the legislative history did not\nshed any light on Congress’s intent in drafting the provision.\nId. at 828–29. We therefore interpreted the phrase for\nourselves.\n\n Subsequent cases have interpreted Wood as establishing\nthis circuit’s precedent that:\n\n where credible, uncontradicted evidence,\n which is consistent with the circumstances of\n the crimes, shows that the two predicate\n\n SZONYI V. WHITAKER 11\n\n crimes were planned at the same time and\n executed in accordance with that plan, we\n must hold that the government has failed in its\n burden to establish that the conviction did not\n arise out of “a single scheme of criminal\n misconduct” within the meaning of [the INA].\n\nGonzalez-Sandoval, 910 F.2d at 616. Thus, in contrast to the\nBIA’s approach, our previous interpretation of “single\nscheme of criminal misconduct” encompassed distinct crimes\nthat were part of the same overall plan.\n\n Wood was decided before Chevron, so we did not in that\ndecision have reason to apply the Chevron framework and did\nnot specifically comment on the ambiguity of the statutory\ntext under Chevron step one. We did not say, though, that our\ninterpretation “follow[ed] from the unambiguous terms of the\nstatute,” which would foreclose the agency’s approach under\nBrand X, 545 U.S. at 982. See Wood, 266 F.2d at 828–29. The\nWood decision likewise did not directly address the\nreasonableness of the BIA’s approach under Chevron step\ntwo other than to reject it in favor of our court’s own\ninterpretation. Id. at 830. Our rationale for the conclusion was\nour own interpretation of the text, the absence of useful\nlegislative history, and resolution of any interpretive doubt in\nfavor of the alien where deportation might result. Id.\n\n Szonyi also cites two post-Chevron cases that reaffirmed\nWood’s interpretation of “single scheme,” but neither case\nconsidered the permissibility of the BIA’s interpretation. In\nGonzalez-Sandoval, we reversed a BIA decision that relied on\nthe First Circuit’s standard rather than the Wood standard in\ninterpreting “single scheme.” 910 F.2d at 615. In Leon-\nHernandez, we mentioned the standards from Wood and\n\n12 SZONYI V. WHITAKER\n\nGonzalez-Sandoval in affirming the BIA’s decision without\nmentioning any different BIA standard. 926 F.2d at 905. In\nsum, contrary to Szonyi’s argument, there is no circuit\nprecedent holding that the text of the statute unambiguously\nforecloses the BIA interpretation.\n\n Our decision here is consistent with the decisions of other\ncircuits that have considered the BIA’s interpretation after\nChevron. See, e.g., Balogun v. INS, 31 F.3d 8 (1st Cir. 1994);\nChavez-Alvarez v. Attorney Gen. United States, 850 F.3d 583\n(3d Cir. 2017); Akindemowo v. INS, 61 F.3d 282 (4th Cir.\n1995); Iredia v. INS, 981 F.2d 847 (5th Cir. 1993);\nAbdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005);\nNguyen v. INS, 991 F.2d 621 (10th Cir. 1993).\n\n The Fourth Circuit noted in 1995, when it accepted the\nBIA’s interpretation, that at the time only the Second, Third,\nand Ninth Circuits did not follow the BIA’s interpretation.\nAkindemowo, 61 F.3d at 286. In 2000, the Second Circuit\ncalled into question its contrary pre-Chevron interpretation\nand effectively appeared to join the circuits following the\nBIA’s interpretation in Michel v. INS, 206 F.3d 253 (2d Cir.\n2000). The majority in Michel concluded that it did not need\nto decide whether the BIA’s “single scheme” interpretation\nwas reasonable under Chevron, but it specifically noted that\nthe precedent in which it had stated its different interpretation\nof the statute, Nason v. INS, 394 F.2d 223 (2d Cir.1968), was\ndecided before Chevron. It further noted that it had “held, in\npost-Chevron cases, that the BIA is entitled to deference\nwhen interpreting other provisions of the Immigration and\nNationality Act, as long as those interpretations are\nreasonable.” 206 F.3d at 260. Judge Cabranes wrote\nseparately to argue that the BIA interpretation of the relevant\nstatute was entitled to deference and should be so recognized\n\n SZONYI V. WHITAKER 13\n\nformally. Id. at 266 (Cabranes, J., concurring). As for the\nThird Circuit, in 2017 that court “join[ed its] fellow Courts in\nconcluding that the BIA’s interpretation is reasonable.”\nChavez-Alvarez, 850 F.3d at 587. We alone remain.\n\n 2. Reasonableness of BIA Interpretation\n\n Szonyi further argues that even if the BIA’s interpretation\nis not foreclosed by circuit precedent, it is impermissible\nbased on congressional intent and constitutional avoidance.\nAs noted above, we already determined in Wood that the\nlegislative history did not shed any light on Congress’s intent\nregarding this provision. 266 F.2d at 828–29.\n\n We are also unpersuaded by the arguments raised by\nSzonyi and amicus that the canon of constitutional avoidance\nrequires a different interpretation. The Supreme Court’s\nrecent vagueness jurisprudence is distinguishable from the\npresent case because those cases focused on the abstract\nnature of the residual clause inquiry. See Johnson v. United\nStates, 135 S. Ct. 2551, 2557–58 (2015) (holding that a\nprovision of the Armed Career Criminal Act was\nunconstitutionally vague because judicial assessment of risk\nwas tied to “a judicially imagined ‘ordinary case’ of a crime,\nnot to real-world facts or statutory elements” and\n“indeterminacy about how to measure the risk posed by a\ncrime [was combined] with indeterminacy about how much\nrisk it takes for the crime to qualify as a violent felony”);\nSessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018) (striking\ndown a similar provision because it “has the same ‘[t]wo\nfeatures’ that ‘conspire[d] to make [ACCA’s residual clause]\nunconstitutionally vague’” (alterations in original)). Because\nthe “single scheme” exception is not tied to a judicially-\nimagined “ordinary case” and instead relies on a case-specific\n\n14 SZONYI V. WHITAKER\n\ndetermination, it does not present the same uncertainty\nconcerns the Supreme Court identified in Johnson and\nDimaya.\n\n 3. Retroactive Application of the BIA Standard\n\n Szonyi argues that even if the BIA approach is a\npermissible construction of the statute, the agency cannot\nretroactively apply that standard in this case. Under our test\nfor retroactivity, we consider:\n\n (1) whether the particular case is one of first\n impression, (2) whether the new rule\n represents an abrupt departure from well\n established practice or merely attempts to fill\n a void in an unsettled area of law, (3) the\n extent to which the party against whom the\n new rule is applied relied on the former rule,\n (4) the degree of the burden which a\n retroactive order imposes on a party, and\n (5) the statutory interest in applying a new\n rule despite the reliance of a party on the old\n standard.\n\nMontgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th\nCir. 1982). Applying this test, we conclude that the BIA’s\napplication of its standard to Szonyi’s case was permissible.\n\n We have recognized that the first factor “is not well suited\nfor immigration rulings.” Acosta-Olivarria v. Lynch, 799 F.3d\n1271, 1275 (9th Cir. 2015). The parties agree that it is\nirrelevant here.\n\n SZONYI V. WHITAKER 15\n\n “The second and third factors are intertwined” and “will\nfavor retroactivity if a party could reasonably have\nanticipated the change in the law such that the new\nrequirement would not be a complete surprise.” Lemus v.\nLynch, 842 F.3d 641, 649 (9th Cir. 2016) (quotations\nomitted). Szonyi notes that at the time he pled guilty, courts\nin most jurisdictions applied a more expansive interpretation\nof “single scheme of criminal misconduct” than the one the\nBIA adopted in Matter of Islam and applied here. See Matter\nof Adetiba, 20 I. & N. Dec. at 510. As of then, however, the\nBIA itself had consistently applied its own narrower\napproach. It was not until 1992, a decade after Szonyi pled\nguilty, that the BIA announced that it would only apply its\ninterpretation outside circuits, like the Ninth Circuit, that had\nadopted a more expansive interpretation. Id. at 511. Thus, at\nthe time Szonyi pled guilty, it could reasonably have been\nanticipated that the BIA would apply its own interpretation.\nOn balance, the second and third factors favor the\ngovernment.\n\n In immigration cases, we have held that “the fourth factor\nfavors non-retroactive application because deportation is\nunquestionably a substantial burden.” Martinez-Cedillo v.\nSessions, 896 F.3d 979, 994 (2018). The government argues\nSzonyi would be removable even under the Ninth Circuit’s\nsingle-scheme jurisprudence. But there is “a clear difference,\nfor the purposes of retroactivity analysis, between facing\npossible deportation and facing certain deportation.” I.N.S.\nv. St. Cyr, 533 U.S. 289, 325 (2001). Therefore, to the extent\nthere was any uncertainty about Szonyi’s removability under\nthe Ninth Circuit standard but no such ambiguity under the\nBIA standard, the fourth factor favors Szonyi.\n\n16 SZONYI V. WHITAKER\n\n The fifth factor generally favors the government “because\nnon-retroactivity impairs the uniformity of a statutory\nscheme, and the importance of uniformity in immigration law\nis well established.” Garfias-Rodriguez v. Holder, 702 F.3d\n504, 523 (9th Cir. 2012).\n\n In sum, the second, third, and fifth factors favor\nretroactive application of the BIA interpretation, while the\nfourth factor favors Szonyi. On balance, we conclude that the\nretroactive application of the BIA’s interpretation was not\nimproper. See Martinez-Cedillo, 896 F.3d at 994 (holding\nretroactive application permissible based on the same balance\nof factors).\n\n 4. The BIA’s Application of Its Standard\n\n Szonyi further argues that even under BIA precedent he\nshould not be removable. The BIA did not directly address\nthe cases Szonyi has cited to us, probably because Szonyi did\nnot raise them before the BIA, but it is not hard to infer the\ndistinctions that the BIA presumably would have drawn. We\nconclude that the BIA’s analysis was consistent with its\nprecedent.\n\n The BIA started its analysis by citing the interpretation of\nthe relevant language set out in Matter of Adetiba, 20 I. & N.\nDec. at 509–11. It then agreed with the IJ’s finding that\nSzonyi’s offenses against multiple victims over the course of\nsix hours did not fall within a single scheme because, quoting\nfrom the IJ’s decision, “the acts, though similar in character,\n[were] distinct, because the commission of one can occur\nwithout the commission of the other.” The BIA also noted\nthat the crimes did not constitute lesser included offenses of\nanother crime and were not a natural consequence of a single\n\n SZONYI V. WHITAKER 17\n\nact of criminal misconduct. While the BIA noted that\nSzonyi’s convictions covered conduct occurring on the same\nday in the same location, it observed “that the crimes\noccurred over a period of 6 hours did not deprive the\nrespondent of an opportunity to reflect upon one crime before\ncommitting another.” Id.\n\n The BIA’s conclusion was consistent with its statement in\nMatter of Adetiba that its prior cases had treated “single\nscheme” as “meaning there must be no substantial\ninterruption that would allow the participant to disassociate\nhimself from his enterprise and reflect on what he has done.”\n20 I. & N. Dec. at 509–10. The dissent concludes we cannot\ndiscern whether or how the BIA applied this standard.\nHowever, the BIA explicitly concluded that “[a]fter the abuse\nof any one victim, the respondent had the opportunity to\ncease his activities and reflect on what he had done.” The\ndissent finds it significant that the BIA did not say there was\na “substantial interruption” between the crimes, but the BIA\nhas qualified that term as one that would allow the respondent\nto “reflect on what he has done.” Matter of Adetiba, 20 I & N.\nDec. at 509–10. The BIA found that Szonyi had such an\nopportunity here, and “[t]he BIA’s factual findings are\nconclusive unless any reasonable adjudicator would be\ncompelled to conclude to the contrary.” Villavicencio v.\nSessions, 904 F.3d 658, 663–64 (9th Cir. 2018). We do not\nread the record as compelling a conclusion that Szonyi had no\nopportunity to reflect on his acts over a period of five or six\nhours while subjecting three separate women to\nnonconsensual sexual acts.\n\n Szonyi argues that the BIA previously interpreted “single\nscheme” to include all crimes “performed in furtherance of a\nsingle criminal episode.” He contends that all of his acts were\n\n18 SZONYI V. WHITAKER\n\n“in furtherance of a single criminal episode” that began when\nhe pulled out a gun and continued for the next six hours as he\nperformed nonconsensual sexual acts with multiple women.\nIn quoting from BIA precedent, however, Szonyi omits the\nremainder of the relevant sentences, which clarify the\nmeaning of “single criminal episode.” Both Matter of Islam\nand Matter of Adetiba define “single scheme” as acts\n“performed in furtherance of a single criminal episode, such\nas where one crime constitutes a lesser offense of another or\nwhere two crimes flow from and are the natural consequence\nof a single act of criminal misconduct.” See Matter of Islam,\n25 I. & N. Dec. at 639; Matter of Adetiba, 20 I. & N. Dec. at\n511. The BIA applied that standard here, describing “single\ncriminal episode” as including “where one crime is a lesser\nincluded offense of another or two crimes ‘flow from and are\nthe natural consequence of a single act of criminal\nmisconduct.’”\n\n Szonyi also argues that the BIA’s conclusion in this case\nis at odds with the discussion in other precedential BIA cases\nof what constitutes a “single scheme,” including “convictions\nfor indecent fondling of two minors in the same room at the\nsame time,” see Matter of Z-, 8 I. & N. Dec. 170, 175 (BIA\n1958); situations where “A, B, & C are robbed by the alien at\nthe same time,” see Matter of B-, 8 I. & N. Dec. 236, 239\n(BIA 1958); and convictions for assault with intent to do\ngreat bodily harm and manslaughter where the alien\n(1) pushed his mother-in-law down the stairs, then a few\nminutes later (2) stabbed his wife with a knife, Matter of\nPataki, 15 I. & N. Dec. 324, 326 (BIA 1975). Szonyi argues\nthat in light of these decisions, the BIA erred in treating as\nirrelevant the fact that Szonyi’s convictions covered conduct\noccurring on the same day.\n\n SZONYI V. WHITAKER 19\n\n The BIA had previously made clear that the fact that\nmultiple crimes occurred on the same day did not mean that\nthey were necessarily part of a single scheme. See, e.g.,\nMatter of D-, 5 I. & N. Dec. 728, 729 (BIA 1954) (“The fact\nthat one [crime] may follow the other closely, even\nimmediately, in point of time is of no moment.”). The cases\nSzonyi cited to us were all distinguishable based on their\nfacts. For example, in Matter of Pataki, the BIA concluded\nthat convictions for assault and manslaughter against separate\nvictims constituted a “single scheme” because they “were\ncommitted within a few minutes of each other as the result of\nthe same criminal impulse in the course of the same episode.”\n15 I. & N. Dec. at 325–26. As the Board described, the\ncrimes occurred when, in a “rage, the [alien] pushed his\nmother-in-law down the stairs. The rage continued to the\npoint that a few minutes later, he went for a knife and then\nstabbed his wife.” Id. at 326. That two crimes committed\nwithin a few minutes of each other as part of one rage were\nheld to fall within the same scheme does not mean that sexual\ncrimes committed over a span of six hours against separate\nvictims necessarily fell within a single scheme. Similarly,\nwhile both Matter of Z-, 8 I. & N. Dec. at 175, and Matter of\nB-, 8 I. & N. Dec. at 239, described acts occurring “at the\nsame time” or “one time,” the time period was not more\nspecifically defined in either case. The BIA could have\nreasonably concluded those episodes were distinguishable\nfrom crimes committed over six hours.\n\n Although the BIA did not specifically distinguish\nSzonyi’s case from these other decisions, it is understandable\nthat it did not do so where Szonyi failed to argue before the\nBIA that his case was comparable to those cases or to any of\nits precedents. The dissent concludes that Szonyi’s brief to\nthe BIA clearly placed the issue of substantial interruption\n\n20 SZONYI V. WHITAKER\n\nbefore the BIA by citing Matter of Adetiba and Matter of\nIslam, but the BIA also directly followed the tests laid out in\nthose opinions to conclude that Szonyi’s acts did not fall\nwithin a single scheme. The BIA should not be faulted for not\ndistinguishing additional cases that Szonyi did not raise\nbefore the agency when he had the opportunity.\n\nIII. Discretionary Relief\n\n Szonyi applied for two forms of discretionary relief:\nwaiver of inadmissibility under former section 212(c) of the\nINA, 8 U.S.C. § 1182(c), and cancellation of removal under\n8 U.S.C. § 1229b(a). This court lacks jurisdiction to review\nthe merits of a discretionary decision to deny cancellation of\nremoval, but it does have jurisdiction to review whether the\nIJ considered relevant evidence in making this decision.\nVilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).\n“[T]he BIA abuses its discretion when it fails to consider all\nfavorable and unfavorable factors bearing on a petitioner’s\napplication for § 212(c) relief.” Zheng v. Holder, 644 F.3d\n829, 833 (9th Cir. 2011).\n\n Szonyi argues that the BIA failed to consider all favorable\nand unfavorable factors bearing on his eligibility for waiver\nof inadmissibility and cancellation of removal. In making this\nargument, Szonyi only looks to the BIA’s reasoning, arguing\nthat this court’s review is limited to the BIA decision because\nthe BIA conducted de novo review of the IJ’s decision.\nSzonyi is correct that when the BIA reviews questions of\ndiscretion de novo under 8 C.F.R § 1003.1(d)(3)(ii), this\ncourt’s review is limited to the BIA’s decision, “except to the\nextent that the BIA expressly adopted the IJ’s decision.”\nVilchez, 682 F.3d at 1199.\n\n SZONYI V. WHITAKER 21\n\n Here, the BIA announced it was conducting de novo\nreview but also acknowledged “that the Immigration Judge\nadequately and correctly considered and addressed the\nrespondent’s equities and the adverse factors contained in the\nrecord.” We may look to the IJ’s decision when “the BIA\nincorporates parts of the IJ’s reasoning as its own.” Aguilar-\nRamos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). This\ncourt has also reviewed the IJ’s decision, and the BIA’s\nopinion appeared to adopt the IJ’s decision by giving\nexamples from it. See Morgan v. Mukasey, 529 F.3d 1202,\n1206 (9th Cir. 2008). The IJ expressly considered in her first\ndecision and explicitly incorporated into her second decision\nthe positive equities Szonyi claims the BIA erroneously failed\nto consider.\n\n Even if the IJ’s opinion were disregarded, this court\ngenerally presumes that the BIA thoroughly considers all\nrelevant evidence in the record. Larita-Martinez v. INS,\n220 F.3d 1092, 1095–96 (9th Cir. 2000); see also Cole v.\nHolder, 659 F.3d 762, 771 (9th Cir. 2011) (“When nothing in\nthe record or the BIA's decision indicates a failure to consider\nall the evidence, a ‘general statement that [the agency]\nconsidered all the evidence before [it]’ may be sufficient.”\n(citation omitted, alterations in original)). Here, the BIA\ngenerally recognized “positive equities in [Szonyi’s] favor”\nand specifically recognized that these included his lengthy\nresidence in the country, military service, steady\nemployment, payment of taxes, charitable work, citizen sister,\nand various physical disabilities that require medical\ntreatment. Given the general presumption that the BIA\nconsidered all relevant factors, the BIA did not abuse its\ndiscretion in denying relief.\n\n22 SZONYI V. WHITAKER\n\nIV. Conclusion\n\n The petition for review is denied.\n\n PETITION FOR REVIEW DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367460/", "author_raw": "CLIFTON, Circuit Judge:"}, {"author": "FISHER, Circuit Judge, dissenting", "type": "dissent", "text": "FISHER, Circuit Judge, dissenting:\n\n I agree with much of the majority opinion but disagree\nwith the majority’s conclusion that the Board of Immigration\nAppeals (BIA) reasonably applied its precedent to this case.\nMaj. Op. 16–19. BIA precedent squarely holds that two or\nmore crimes committed during a single criminal episode arise\nfrom a single scheme of criminal conduct, and hence do not\nrender an individual removable under 8 U.S.C.\n§ 1227(a)(2)(A)(ii), unless they are marked by a “substantial\ninterruption that would allow the participant to disassociate\nhimself from his enterprise and reflect on what he has done”\nbetween crimes. Matter of Adetiba, 20 I. & N. Dec. 506,\n509–10 (BIA 1992) (emphasis added). Because we cannot\ndiscern whether or how the BIA applied this precedent in this\ncase, where the petitioner’s crimes were part of a single and\ncontinuous criminal episode, and there is nothing in the\nrecord to suggest there was a “substantial interruption”\nbetween the crimes, I would grant the petition for review and\nremand to the BIA for an adequate explanation. See Eneh v.\nHolder, 601 F.3d 943, 947–48 (9th Cir. 2010). Although our\nreview of BIA decisions is limited and deferential, we may\nnot deny a petition for review where, as here, we are left to\nspeculate as to the BIA’s reasoning, and where we cannot\ndiscern from the record whether the BIA misapplied its own\nprecedent. See Alphonsus v. Holder, 705 F.3d 1031, 1049\n\n SZONYI V. WHITAKER 23\n\n(9th Cir. 2013), abrogation on other grounds recognized by\nGuerrero v. Whitaker, 908 F.3d 541, 544 (9th Cir. 2018). I\ntherefore respectfully dissent.\n\n I\n\n Istvan Szonyi was admitted to the United States, at the\nage of four or five, in 1957. In 1981, he was convicted of\nfour criminal offenses involving two victims – two counts of\nunlawful oral copulation in violation of California Penal Code\n§ 288a(c) and two counts of unlawful penetration in violation\nof California Penal Code § 289. He was sentenced to\n12 years in prison, and released from prison in 1988.\n\n The record tells us that Szonyi’s offenses arose out of a\nsingle, continuous and horrific criminal episode: Szonyi\ninvited three women into his nearby place of work, where he\nthreatened, abused and degraded them over a period of five\nor six hours. The record does not, however, reveal when\nduring this five or six hour period the four criminal offenses\nfor which Szonyi was convicted occurred. Nor does it\nexplain how much time elapsed between the offenses, or\nwhether there was a substantial interruption between them.\n\n In 2005, the Department of Homeland Security\ncommenced removal proceedings against Szonyi. Relying on\nthe 1981 convictions, the government charged Szonyi with\nbeing removable under 8 U.S.C. § 1227(a)(2)(A)(ii), which\nstates:\n\n Any alien who at any time after admission is\n convicted of two or more crimes involving\n moral turpitude, not arising out of a single\n scheme of criminal misconduct, regardless of\n\n24 SZONYI V. WHITAKER\n\n whether confined therefor and regardless of\n whether the convictions were in a single trial,\n is deportable.\n\n8 U.S.C. § 1227(a)(2)(A)(ii) (emphasis added). The BIA\nagreed with the government that Szonyi was removable\nbecause he was convicted of multiple offenses of moral\nturpitude “not arising from a single scheme.” Szonyi timely\npetitioned for review. The majority would deny the petition.\nI would grant it.\n\n II\n\n The term “arising out of a single scheme of criminal\nmisconduct” is not defined by the Immigration and\nNationality Act. The BIA, however, has defined the term in\na series of precedential decisions, holding that, “to be a\n‘single scheme,’ the scheme must take place at one time,\nmeaning there must be no substantial interruption that would\nallow the participant to disassociate himself from his\nenterprise and reflect on what he has done.” Matter of\nAdetiba, 20 I. & N. Dec. at 509–10 (emphasis added); accord\nMatter of Islam, 25 I. & N. Dec. 637, 640, 642 (BIA 2011).\n\n In adopting this substantial interruption rule, the Board\nfollowed the First Circuit’s decision in Pacheco v. INS,\n546 F.2d 448 (1st Cir. 1976). See Matter of Adetiba, 20 I. &\nN. Dec. at 509–11. In Pacheco, the First Circuit held that\n“the intent of Congress in [adopting the ‘single scheme’\nlanguage] was to give ‘a one-time alien offender . . . a second\nchance before he could be deported.’” Pacheco, 546 F.2d at\n451 (second alteration in original) (quoting Nason v. INS,\n394 F.2d 223, 227 (2d Cir. 1968)). Thus, “a scheme, to be a\n‘single scheme’, must take place at one time; there must be\n\n SZONYI V. WHITAKER 25\n\nno substantial interruption that would allow the participant to\ndisassociate himself from his enterprise and reflect on what\nhe has done.” Id. The court explained that “both the purpose\nof the statute and the use of the adjective ‘single’ point to a\ntemporally integrated episode of continuous activity. When\nthe immediate activity has ended, even though a ‘scheme’\ncalls for future activity a participant has his second chance to\nmake a decision.” Id. at 452.\n\n The Board also cited its own decision in Matter of Pataki,\n15 I. & N. Dec. 324 (BIA 1975), as exemplifying the\nsubstantial interruption rule. See Matter of Adetiba, 20 I. &\nN. Dec. at 510. In Matter of Pataki, 15 I. & N. Dec. at 325,\nthe respondent pled guilty to two crimes occurring on the\nsame day – an assault on his mother-in-law and a subsequent\nassault on his wife. The BIA sustained the immigration\njudge’s conclusion that the two crimes were part of a “single\nscheme of criminal misconduct”:\n\n This evidence indicates that the crimes for\n which the respondent was convicted stem\n from a marriage problem. In his rage, the\n respondent pushed his mother-in-law down\n the stairs. The rage continued to the point that\n a few minutes later, he went for a knife and\n then stabbed his wife. We are satisfied that\n both crimes were committed within a few\n minutes of each other as the result of the same\n criminal impulse in the course of the same\n episode. This evidence is probative of the\n existence of a single scheme.\n\nId. at 326.\n\n26 SZONYI V. WHITAKER\n\n Szonyi invoked the BIA’s “substantial interruption”\nprecedent here. Citing Matter of Adetiba and Matter of Islam,\nhe correctly argued in his brief to the BIA that “for a course\nof criminal misconduct to constitute a single scheme it must\ntake place at one time with no substantial interruption that\nwould provide the perpetrator the opportunity to disassociate\nhimself and reflect on the criminal enterprise.”\nAdministrative Record 11. He then argued that the criminal\nacts he committed constituted a “single scheme of criminal\nmisconduct,” because “there was no substantial interruption”\nthat would have allowed him “to disassociate himself from\nhis enterprise.” Id. at 12–13.\n\n The BIA did not meaningfully address this argument. To\nbe sure, the Board said in a conclusory fashion that Szonyi\nhad an opportunity between offenses to reflect on what he had\ndone and to disassociate himself from the criminal enterprise:\n\n [T]hat the crimes occurred over a period of\n 6 hours did not deprive the respondent of an\n opportunity to reflect upon one crime before\n committing another. After the abuse of any\n one victim, the respondent had the\n opportunity to cease his activities and reflect\n on what he had done. Accordingly, the\n respondent was convicted of multiple offenses\n of moral turpitude not arising from a single\n scheme.\n\nBut the BIA did not provide any basis for concluding that\nSzonyi had an opportunity to reflect upon one crime before\ncommitting another. Significantly, the Board did not say that\nthere was a substantial interruption between the crimes.\n\n SZONYI V. WHITAKER 27\n\n Our case law makes clear that the BIA must adequately\nexplain its decisions. As we said in Delgado v. Holder,\n648 F.3d 1095 (9th Cir. 2011) (en banc),\n\n the BIA must provide “a reasoned explanation\n for its actions.” Movsisian v. Ashcroft,\n 395 F.3d 1095, 1098 (9th Cir. 2005). “Due\n process and this court’s precedent require a\n minimum degree of clarity in dispositive\n reasoning and in the treatment of a properly\n raised argument.” Su Hwa She v. Holder,\n 629 F.3d 958, 963 (9th Cir. 2010). The BIA\n must be clear enough that we need not\n “speculate based on an incomplete analysis.”\n Id. at 964; see also Eneh v. Holder, 601 F.3d\n 943, 947 (9th Cir. 2010).\n\nId. at 1107.\n\n The Board has not discharged that duty here. Did it\nconclude that a “substantial interruption” is not required? If\nso, how can it reconcile that conclusion with its decisions in\nMatter of Adetiba and Matter of Islam? See Henriquez-Rivas\nv. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc)\n(“[W]e find that the BIA misapplied its own precedent . . . .\nAccordingly, we grant [the] petition for review and remand\nto the BIA for further proceedings.”); Israel v. INS, 785 F.2d\n738, 740 (9th Cir. 1986) (“The BIA acts arbitrarily when it\ndisregards its own precedents and policies without giving a\nreasonable explanation for doing so.”). Did it instead\nconclude that there was a “substantial interruption” in this\ncase? If so, why didn’t it say so, and what is the basis in the\nrecord for that conclusion?\n\n28 SZONYI V. WHITAKER\n\n The majority concludes that the substantial interruption\nrequirement is satisfied in Szonyi’s case because the crimes\nwere “committed over a span of six hours.” Maj. Op. 19.\nBut this reasoning is unpersuasive. First, our review must be\nbased on the BIA’s reasoning, not our own. See Andia v.\nAshcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“If we\nconclude that the BIA’s decision cannot be sustained upon its\nreasoning, we must remand to allow the agency to decide any\nissues remaining in the case.”). Second, because the record\ndoes not reveal when during these five or six hours Szonyi’s\ncrimes of conviction occurred, it does not support the\nmajority’s conclusion that they were committed “over a span\nof six hours.” They may have occurred within “a few\nminutes of each other,” as in Matter of Pataki, 15 I. & N.\nDec. at 326.1 Third, even assuming arguendo that the crimes\noccurred over hours rather than minutes, the BIA has never\nheld that a passage of time or the duration of a continuous\ncriminal episode, without more, establishes a substantial\ninterruption. As Pacheco makes clear, “a temporally\nintegrated episode of continuous activity,” as apparently\noccurred here, constitutes a single scheme, not two separate\nschemes. 546 F.2d at 452.2\n\n\n\n 1\n See also Matter of B-, 8 I. & N. Dec. 236, 239 (BIA 1958) (holding\nthat a “single scheme” exists when “there are a series of similar acts which\noccurred at ‘one time,” as when “A & B are indecently fondled at the\nsame time”); Matter of Z-, 8 I. & N. Dec. 170, 175 (BIA 1958) (explaining\nthat “convictions for indecent fondling of two minors in the same room at\nthe same time” are “so related in time and purpose as in reality to\nconstitute” a single scheme).\n 2\n The BIA’s decision in Matter of Islam provides an example of a case\nin which multiple crimes committed on a single day were marked by a\nsubstantial interruption. There, the respondent admitted that\n\n SZONYI V. WHITAKER 29\n\n The majority says the Board’s failure to “distinguish\nSzonyi’s case from . . . other decisions . . . is understandable”\nbecause “Szonyi failed to argue before the BIA that his case\nwas comparable to those cases or to any of its precedents.”\nMaj. Op. 19. Szonyi’s brief to the BIA, however, cited the\nBIA’s two key decisions on the substantial interruption issue\n– Matter of Adetiba and Matter of Islam3 – and made the\nsubstantial interruption issue the centerpiece of his BIA\nappeal. See Administrative Record 11–13. It is, in fact,\ndifficult to see what more Szonyi could have done to place\nthe issue before the Board. It is true that Szonyi’s brief\nbefore the BIA did not mention some other BIA decisions,\n\n\n\n “on March 22, 2008, he used or attempted to use two\n different credit and debit cards belonging to another\n individual on five separate occasions to purchase\n goods.” According to the Immigration Judge, the\n respondent “drove to four different locations and made\n five purchases over the span of a few hours.” The\n locations where the cards were used were in two\n adjoining counties and involved different retail outlets,\n including Auto Zone and Walmart. During one\n transaction involving a stolen credit card, the\n respondent told the cashier that the card belonged to his\n girlfriend.\n\n25 I. & N. Dec. at 638 (alteration omitted). The BIA held that “the\nrespondent’s crimes, while occurring in a single day, did not arise from a\n‘single scheme’ of criminal misconduct,” because, “[a]fter use of any one\ncredit card, the respondent had the opportunity to disassociate himself\nfrom his enterprise and reflect on what he had done.” Id. at 642 (alteration\nomitted). Here, by contrast, it is far from clear that there was a substantial\ninterruption between Szonyi’s offenses.\n 3\n Matter of Adetiba, in turn, cited Matter of Pataki as exemplifying\nthe substantial interruption rule. See Matter of Adetiba, 20 I. & N. Dec.\nat 510.\n\n30 SZONYI V. WHITAKER\n\nsuch as the two decisions discussed above in footnote 1. But\nthis is of no moment. Szonyi squarely presented the\nsubstantial interruption issue to the Board. The BIA,\ntherefore, was bound to address the issue in a manner that\nwould allow for meaningful appellate review.\n\n The majority alternatively suggests we can uphold the\nBIA’s decision by relying on the deferential standard of\nreview we apply to the BIA’s findings of fact. The majority\nnotes that the BIA found Szonyi “had the opportunity to cease\nhis activities and reflect on what he has done,” and argues\nthat the record does not compel “a conclusion that Szonyi had\nno opportunity to reflect on his acts over a period of five or\nsix hours while subjecting three separate women to\nnonconsensual sexual acts.” Maj. Op. 17. I cannot agree.\n\n First, the issue in this case is whether Szonyi had an\nopportunity to reflect between the actual crimes for which he\nwas convicted. 8 U.S.C. § 1227(a)(2)(A)(ii). Szonyi was not\nconvicted of assaulting three women, and he was not\nconvicted of engaging in assaults over a period of five or six\nhours. He was convicted of four unlawful acts involving two\nwomen, and the record is silent as to when those acts\noccurred in relation to one another. Second, although we\nhave a duty to defer to the Board’s findings of fact, we do not\ndefer to mere speculation. See Maini v. INS, 212 F.3d 1167,\n1175 (9th Cir. 2000) (“We have said it before and we say it\nagain: conjecture and speculation can never replace\nsubstantial evidence.”). Here, there is nothing in the record\nto show that any time elapsed between the actual crimes for\nwhich Szonyi was convicted. Hence, if the BIA relied on the\ntheory that time elapsed between Szonyi’s crimes, then the\nBIA relied on speculation, and its finding is not supported by\nsubstantial evidence. If the BIA alternatively relied on the\n\n SZONYI V. WHITAKER 31\n\ntheory that no time lapse was required, then the BIA needed\nto reconcile that conclusion with its own precedent. See\nMatter of Adetiba, 20 I. & N. Dec. at 509–10 (holding that\nthere must be a “substantial interruption that would allow the\nparticipant to disassociate himself from his enterprise and\nreflect on what he has done”); Matter of Islam, 25 I. & N.\nDec. at 640, 642 (same); Matter of Pataki, 15 I. & N. Dec. at\n326 (holding that two distinct crimes involving different\nvictims, committed within a few minutes of each, resulting\nfrom the same criminal impulse and committed in the course\nof the same episode arose out of a “single scheme of criminal\nmisconduct”); Matter of B-, 8 I. & N. Dec. at 239 (holding\nthat a “single scheme” exists when “there are a series of\nsimilar acts which occurred at ‘one time,” as when “A & B\nare indecently fondled at the same time”); Matter of Z-, 8 I.\n& N. Dec. at 175 (same). The standard of review offers no\nshelter here.\n\n III\n\n On this record, I would grant the petition for review and\nremand for the BIA to adequately explain its decision. BIA\nprecedent clearly requires a “substantial interruption”\nbetween offenses, and Szonyi squarely placed this issue\nbefore the BIA. The BIA, however, did not address it,\nleaving us to speculate whether the BIA disregarded the\n“substantial interruption” requirement, in contravention of its\nown precedent, or concluded that there was a “substantial\ninterruption” between offenses in this case, but without\nsaying so and without pointing to anything in the record to\nsupport that conclusion. Absent an adequate explanation, we\ncannot effectively review the Board’s decision.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367460/", "author_raw": "FISHER, Circuit Judge, dissenting"}]}	RAYMOND C FISHER	RICHARD R CLIFTON	CONSUELO M CALLAHAN	1	{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590207/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,356		United States v. Riley Briones, Jr.	2019-02-13	16-10150	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS FEB 13 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF AMERICA, No. 16-10150\n\n Plaintiff-Appellee, D.C. No.\n 2:96-cr-00464-DLR-4\n v. District of Arizona,\n Phoenix\nRILEY BRIONES, Jr., AKA Unknown\nSpitz, ORDER\n\n Defendant-Appellant.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\nand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\n\ncited as precedent by or to any court of the Ninth Circuit.\n\n Judge Watford did not participate in the deliberations or vote in this case.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367609/"}]}				0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590356/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,093		Westport Ins. Corp. v. California Casualty Mgt.	2019-02-20	17-15924	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: RAYMOND C. FISHER, and MILAN D. SMITH, JR., Circuit Judges, and LAWRENCE L. PIERSOL* District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n WESTPORT INSURANCE No. 17-15924\n CORPORATION,\n Plaintiff-Appellee, D.C. No.\n 3:16-cv-01246-\n v. WHO\n\n CALIFORNIA CASUALTY\n MANAGEMENT COMPANY, DBA OPINION\n California Casualty,\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Horsley Orrick, District Judge, Presiding\n\n Argued and Submitted November 15, 2018\n San Francisco, California\n\n Filed February 20, 2019\n\nBefore: RAYMOND C. FISHER, and MILAN D. SMITH,\n JR., Circuit Judges, and LAWRENCE L. PIERSOL\n District Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n \n The Honorable Lawrence L. Piersol, United States District Judge\nfor the District of South Dakota, sitting by designation.\n\f2 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\n SUMMARY \n\n\n California Insurance Law\n\n The panel affirmed the district court’s summary\njudgment entered in favor of Westport Insurance Company\nin a diversity insurance coverage action concerning claims\nfor $15.8 million brought by three former students against\nMoraga School District and three of its school\nadministrators.\n\n Westport, the primary and excess insurer of the District,\ndefended and settled the claims for $15.8 million, and sought\nrepayment from the administrators’ insurer, California\nCasualty Management Company. The district court found\nCalifornia Casualty liable for $2.6 million of the $15.8\nmillion paid to the underlying plaintiffs collectively.\n\n California Casualty asserted that California Government\nCode § 825.4, which prohibits public entities from seeking\nindemnification from its employees, barred Westport’s\nlawsuit because the administrators were public employees,\nand therefore, the District must defend and pay the entire\nsettlement fee without California Casualty’s contribution.\nThe panel held that § 825.4 did not preclude Westport’s\nclaim because § 825.4 does not contain a blanket ban on an\nemployee’s insurer contributing to the employee’s defense\nand settlement costs. The panel further held that, here, the\nobligation to defend and indemnify still rested with the\npublic entity and its insurer despite contribution from the\nemployee’s insurance.\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 3\n\n California Casualty next asserted that that it was not\nobligated to contribute to the settlements because its policy\ncovered excess payments only when all other policies had\nbeen exhausted, and Westport’s primary and excess policies\nwere sufficient to cover the total amount of the settlements.\nThe panel held that this claim was contrary to the plain text\nof California Casualty’s policy. The panel construed\nCalifornia Casualty’s policy to apply upon the exhaustion of\nthe $1 million of underlying insurance, not after exhaustion\nof all other insurance.\n\n California Casualty challenged the apportionment of\nliability with Westport on a number of grounds. The panel\nheld that California Casualty waived its argument that the\nlack of contemporaneous allocation of liability in the\nsettlements precluded subsequent apportionment. Next, the\npanel held that given the blended pleadings and wordings of\nthe settlement agreements, the district court did not abuse its\ndiscretion in allocating the liability equally among the\nDistrict and the three administrators. The panel rejected\nCalifornia Casualty’s challenge to the district court’s finding\nthat Westport only needed to pay $1 million per occurrence\ninstead of $1 million per occurrence per insured, totaling $3\nmillion. The panel further held that California Casualty’s\npolicy coverage began upon exhaustion of Westport’s\nprimary policy when Westport paid $1 million per policy per\nstudent. The panel rejected California Casualty’s contention\nthat its coverage should prorate with Westport’s coverage.\n\n The panel held that the district court did not abuse its\ndiscretion in awarding prejudgment interest at ten percent\nfrom the dates Westport paid the settlements.\n\f4 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\n COUNSEL\n\nMark G. Bonino (argued), Charles E. Tillage, and Elizabeth\nJ. Moul, Hayes Scott Bonino Ellingson Guslani Simonson &\nClause LLP, San Carlos, California, for Defendant-\nAppellant.\n\nAdam H. Fleischer (argued), Michael H. Passman, and Mark\nG. Sheridan, Bates Carey LLP, Chicago, Illinois; Michael K.\nJohnson, Lewis Brisbois Bisgaard & Smith LLP, San\nFrancisco, California; for Plaintiff-Appellee.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n This appeal involves a dispute between two insurance\ncompanies that arose after the settlement of certain claims\nbrought against their insureds. After Westport Insurance\nCorporation (Westport) defended and settled claims for\n$15.8 million brought by three former students against\nMoraga School District (the District) and three of its school\nadministrators, it sought repayment from the administrators’\ninsurer, California Casualty Management Company\n(California Casualty). The two insurers cross-moved for\nsummary judgment, and the district court held that\nCalifornia Casualty owed Westport $2.6 million plus\n$755,637.20 in prejudgment interest. We affirm.\n\n BACKGROUND\n\n Westport, through a predecessor company, issued\nprimary general liability insurance policies (Westport’s\nPrimary policy) to the District from 1991 through 1997.\nFrom October 1, 1994 to October 1, 1997, Westport also\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 5\n\nissued a series of annual excess policies that covered the\nDistrict and its employees (Westport’s Excess policy).\n\n California Casualty issued successive annual liability\npolicies to the Association of California School\nAdministrators from at least July 1, 1986 to July 1, 2000.\nCalifornia Casualty provided excess liability to the District’s\nschool administrators under this policy’s Coverage A plan,\ntitled Administrators Excess Liability (California Casualty’s\npolicy).\n\n To provide a framework for our analysis, we first outline\nthe claims included in the underlying lawsuits. On January\n29, 2013, Doe 1 and Doe 2, two former students of the\nMoraga School District, filed suit in the Superior Court for\nContra Costa County, California against the District and\nthree of its school Administrators—William Walters, John\nCooley, and Paul Simonin. Earlier that same month, another\nformer student, Doe 3, also sued the three Administrators\nand the District. In these lawsuits, the several Does alleged\nthat the District’s employee, Daniel Witters, sexually\nmolested them in the mid-1990s while he was their middle\nschool teacher. The Does alleged that the Administrators\nreceived warnings about the molestations, but the\nAdministrators failed to act to stop Witters. When the\nstudents came forward in 1996, Witters killed himself. In\ntheir lawsuits, Doe 1 alleged that Witters molested her\nduring policy periods 1993–94, 1994–95, and 1995–96; Doe\n2 alleged that she was molested in the 1995–96 and 1996–97\nperiods; and Doe 3 alleged that she was molested in the\n1996–97 period.\n\f6 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\n In January 2013, both Westport and California Casualty\nattended an unsuccessful mediation of the Does’ lawsuits.\nThe Doe 3 lawsuit eventually settled separately for\n$1.8 million in August 2013, but Westport appears to have\npaid the settlement on July 29, 2013, prior to the signing of\nthe settlement agreement. In June 2014, California Casualty\nand Westport also attended a mediation for the lawsuit\nbrought by Does 1 and 2. At the mediation, Does 1 and 2\nsettled their lawsuit for $7 million each. On June 26, 2014,\nWestport paid Does 1 and 2. California Casualty\nsubsequently refused to contribute to any of the Does’\nsettlements (the Settlements), and Westport funded the\nentirety of these Settlements in the aggregate sum of\n$15.8 million.\n\n On July 11, 2014, Westport demanded that California\nCasualty pay its share of the Settlements, but received no\nresponse. Westport wrote to California Casualty three\nadditional times, and received no response. After Westport’s\nOctober 30, 2014 demand, California Casualty finally\nreplied and refused to reimburse Westport.\n\n Westport then filed suit against California Casualty on\nApril 13, 2015 in federal court. After the parties brought\ncross-motions for summary judgment, the district court\nentered summary judgment in favor of Westport for\n$2.6 million plus interest. A month later, the district court\nadded $755,637.20 of prejudgment interest to the judgment.\nCalifornia Casualty timely appealed.\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction over this appeal pursuant to\n28 U.S.C. § 1291. We review the district court’s grant or\ndenial of summary judgment de novo. Evanston Ins. Co. v.\nOEA, Inc., 566 F.3d 915, 918 (9th Cir. 2009). We also\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 7\n\nreview its interpretation of state law and the insurance\npolicies de novo. Id. at 920; Stanford Ranch, Inc. v.\nMaryland Cas. Co., 89 F.3d 618, 624 (9th Cir. 1996). The\ndistrict court’s award of prejudgment interest is reviewed for\nabuse of discretion. Mutuelles Unies v. Kroll & Linstrom,\n957 F.2d 707, 714 (9th Cir. 1992).\n\n ANALYSIS\n\nI. Indemnification pursuant to California Government\n Code § 825.4\n\n As a threshold matter, California Casualty asserts that\nCalifornia Government Code § 825.4 (§ 825.4), which\nprohibits public entities from seeking indemnification from\nits employees, bars Westport’s lawsuit. California Casualty\ncontends that because the Administrators were public\nemployees, the District must defend and pay the entire\nsettlement fee without its contribution. The California\nSupreme Court has not spoken directly on this issue, so “we\nmust determine what result the court would reach based on\nstate appellate court opinions, statutes and treatises.”\nEvanston, 566 F.3d at 921 (quoting Paulson v. City of San\nDiego, 294 F.3d 1124, 1128 (9th Cir. 2002) (en banc)).\n\n Section 825.4 provides:\n\n Except as provided in Section 825.6, if a\n public entity pays any claim or judgment\n against itself or against an employee or\n former employee of the public entity, or any\n portion thereof, for an injury arising out of an\n act or omission of the employee or former\n\f8 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\n employee of the public entity, he is not liable\n to indemnify the public entity.\n\nCal. Gov’t Code § 825.4. 1\n\n Only a few California Court of Appeal cases analyze\n§ 825.4. Westport primarily relies on a line of cases\nbeginning with Oxnard Union High School District v.\nTeachers Insurance Co., 99 Cal. Rptr. 478 (Ct. App. 1971),\nwhereas California Casualty cites to Pacific Indemnity v.\nAmerican Mutual Insurance Co., 105 Cal. Rptr. 295 (Ct.\nApp. 1975).\n\n Unfortunately, neither set of cases definitively addresses\nthe factual pattern present in this case. Nevertheless, we\naffirm the district court’s conclusion that § 825.4 does not\npreclude Westport’s claim because § 825.4 does not contain\na blanket ban on an employee’s insurer contributing to the\nemployee’s defense and settlement costs. Here, the\nobligation to defend and indemnify still rests with the public\nentity and its insurer despite contribution from the\nemployee’s insurance. We find support for our holding in\nthe principles animating the several § 825.4 cases.\n\n In Oxnard, the California Court of Appeal held that\nalthough the teacher-employee’s school district was\n“obligated to pay in full” the settlement of an automobile\ncrash negligence action against the teacher, the school\ndistrict had discharged its liability by using the teacher’s\n 1\n The exceptions set forth in § 825.6 contemplate whether the\nemployee or former employee “acted or failed to act because of actual\nfraud, corruption, or actual malice, or willfully failed or refused to\nconduct the defense of the claim or action in good faith.” Cal. Gov’t\nCode § 825.6. Neither party claims that these exceptions are at issue in\nthis case.\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 9\n\ninsurance as primary coverage and its own insurance as\nexcess coverage. 99 Cal. Rptr. at 480. Oxnard’s progeny\nsimilarly involved automobile accidents committed by\nemployees during the scope of their employment. 2\n\n In the first case, the teacher-employee’s automobile\ninsurer, GEICO, defended a negligence suit against the\nteacher, paid the settlement, and then sought to recoup the\namount paid from the school district’s insurer. Gov’t Emps.\nIns. Co. v. Gibraltar Cas. Co., 229 Cal. Rptr. 57, 60 (Ct.\nApp. 1986). After considering the relevant portions of the\nautomobile policy and the insurance code, the court\nconcluded that the school district “was itself an insured\nunder the GEICO policy,” due to the language in GEICO’s\npolicy that defined persons insured as “any other person or\norganization for his or its liability because of the acts or\nomissions of any insured.” Id. at 64 (emphasis added).\nThus, the school district satisfied its statutory obligation by\navailing itself of the employee’s automotive insurance\npolicy as long as the employee remained fully covered. Id.\nat 65.\n\n Similarly, in Younker v. County of San Diego, a\nfirefighter-employee and his automobile insurer sued the\ncounty-employer to recover expenses for defending and\nsettling a claim against the firefighter arising from an\nautomobile crash. 285 Cal. Rptr. 319, 321 (Ct. App. 1991).\nThe court first determined that the county was an insured\npursuant to the terms of the employee’s automobile policy\nbecause it was “clearly a person or organization liable\nbecause of [the employee’s] acts or omissions” as defined\n\n 2\n Oxnard involved Section 825, which covers defense by a public\nentity, not § 825.4 specifically. Nevertheless, Oxnard’s progeny\ninvolved automobile accidents committed by employees and public\nentity indemnification under § 825.4.\n\f10 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\nunder the policy. Id. at 323. The court then held that the\ncounty properly looked to the employee’s insurer to fulfill\nits own statutory obligation, thereby rejecting the\nemployee’s argument that using the proceeds of his policy\nfor the settlement contravened § 825.4. Id. at 323–24.\n\n In contrast, the court in Pacific Indemnity barred an\ninsurer’s attempt for settlement cost recovery from the\nemployee’s insurance. There, a patient sued a physician\nemployed by the University of California (UC) for injuries\ncaused by the physician-employee’s medical services.\n105 Cal. Rptr. at 296. After the settlement, the UC’s insurer\nbrought an action for contribution against the physician’s\ninsurer. Id. The California Court of Appeal first noted that\nunder § 825.4, primary liability for the expenses of the\nsettlement lay with the UC, and thus the insurer “c[ould]\nonly secure contribution if there is other insurance covering\nthe obligation of the Regents.” Id. at 302. The court held\nthat the UC’s insurer could not look to the physician’s\ninsurer for contribution because to do so would not be\nconsistent with California’s policy rationale of public\nentities indemnifying their employees. Id. at 303. 3 The\ncourt distinguished Oxnard and observed it should not apply\nwhere “there is neither concession nor contract provision\nwhich renders the employee’s insurance available for the\nsatisfaction of the public entity’s obligation to the victim or\n. . . its employee.” Id. at 305.\n\n Several principles discernable from the Oxnard and\nPacific Indemnity line of cases guide our conclusion that\n\n 3\n In Pacific Indemnity, the court was particularly concerned because\nthe employee’s personal policy did not just cover claims arising in the\ncourse of employment but any acts or omissions that were not within the\nscope of the employment. The court noted that this impermissibly placed\nthe burden of insurance on the employee personally.\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 11\n\n§ 825.4 does not preclude Westport’s suit. First,\nindemnification pursuant to § 825.4 is not wholly\ninconsistent with contribution from an employee’s insurer.\nIn Oxnard and its progeny, the courts expressly permitted\nthe employees’ personal insurance, albeit automotive, to pay\nthe entirety or majority of the settlement, even though the\ncourts first found that the public entities were liable pursuant\nto the provisions of Section 825. Even in Pacific Indemnity,\nthe court noted that another insurer could contribute to\nsettlement costs if the language of that insurance policy also\ncovered the public entity’s obligation. 105 Cal. Rptr. at 296.\n\n Second, the employee and his employer do not occupy\nequivalent positions for purposes of indemnification\nanalysis. In both Younker and Gibraltar, the courts\ndifferentiated between the employee and his insurer when\nconsidering whether Section 825’s prohibition on a public\nentity seeking indemnity from its employee required the\nentities’ insurers to reimburse the employees’ insurers. The\ncourts rejected the employees’ insurers’ position in part\nbecause none of the employees had personally contributed\nto the settlement costs. Younker, 285 Cal. Rptr. at 323\n(noting the employee “did not foot the bill”); Gibraltar,\n229 Cal. Rptr. at 61 (noting employee “paid nothing” of the\nsettlement).\n\n Third, where the employee’s policy is available to the\npublic entity as an insured, contribution to the defense and\nsettlement costs may be permitted. Pacific Indemnity,\nYounker, and Gibraltar all recognized this principle either\nexplicitly, as in Pacific Indemnity, or implicitly by first\nfinding that the entity-employer was an insured under the\nemployee’s policy, as in Younker and Gibraltar.\n\n Here, policy concerns regarding the proper placement of\nthe burden of settlement costs are assuaged. The District\n\f12 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\nfurnished primary and excess insurance to its Administrators\nthrough Westport. There is no evidence in the record, and\nneither party claims, that any of the Administrators\npersonally contributed to the settlement. That their insurer,\nCalifornia Casualty, is now being called upon to provide its\nexcess coverage to cover the employees’ settlements does\nnot violate the intent behind § 825.4 indemnification. In\naddition, California Casualty’s policy is limited to claims\narising in the course of employment.\n\n Furthermore, Pacific Indemnity held that a “concession”\nor “contract provision which renders the employee’s\ninsurance available for the satisfaction of the public entity’s\nobligation” would satisfy § 825.4. 105 Cal. Rptr. at 304.\nCalifornia Casualty’s policy contemplates this exact\nsituation when it states that the underlying primary insurance\nmust be provided under one of several sections of the\nEducation Code, Cal. Gov’t Code §§ 825 or 825.4 or\nprovided on behalf of the insured by any public educational\nentity.\n\n For these reasons, we hold that § 825.4 does not preclude\nWestport’s claim against California Casualty for repayment\nof a portion of the Settlements.\n\nII. Interpretation of Westport’s and California\n Casualty’s Policies\n\n California Casualty next claims that it is not obligated to\ncontribute to the Settlements because its policy covers\nexcess payments only when all other policies have been\nexhausted, and Westport’s Primary and Excess policies are\nsufficient to cover the total amount of the Settlements.\nWestport counters that this claim is contrary to the plain text\nof California Casualty’s policy. We agree with Westport.\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 13\n\n Under California law, interpretation of insurance\npolicies “follows the general rules of contract\ninterpretation.” TRB Invs., Inc. v. Fireman’s Fund Ins. Co.,\n145 P.3d 472, 477 (Cal. 2006). Courts construe policy\nprovisions in their ordinary and popular senses, unless used\nby the parties in a technical manner or with a special\nmeaning. Id. Insurance coverage is also construed broadly\n“so as to afford the greatest possible protection to the\ninsured, whereas exclusionary clauses are to be interpreted\nnarrowly against the insurer.” Id.\n\n California Casualty’s policy covers “all damages in\nexcess of the required underlying primary collectible\ninsurance or self-insurance.” Administrator excess liability\nis capped at $150,000 per occurrence per insured, over the\n$1 million underlying primary layer, and the policy has a\n$2 million aggregate limit per annual policy period. The\nexclusions further explain, “There shall be no insurance\nafforded under this policy until the required $1 million limit\nof liability afforded the insured by such other insurance or\nself-insurance is exhausted.”\n\n These provisions clarify that California Casualty’s\ninsurance is not “excess over all other insurance” as it\nclaims. California Casualty’s policy is certainly an “excess”\npolicy, but it requires only that the “underlying primary\ncollectible insurance or self-insurance” be exhausted before\nits coverage begins. The policy requires the exhaustion of\nonly “primary” or “self” insurance as opposed to “all other”\ninsurance or “primary and excess” insurance.\nComparatively, Westport’s Excess policy states, “If there is\nany other collectible insurance available to the insured . . .\n[this insurance] will apply in excess of other collectible\ninsurance.” (Emphasis added.) See Carmel Dev. Co. v. RLI\nIns. Co., 24 Cal. Rptr. 3d 588, 592, 598 (Ct. App. 2005)\n\f14 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\n(finding insurance policy that stated it would pay “sums in\nexcess of Primary Insurance” was triggered prior to a policy\nthat applied in excess of other “primary, excess or excess-\ncontingent insurance”). 4 Accordingly, we construe\nCalifornia Casualty’s policy to apply upon the exhaustion of\nthe $1 million of underlying insurance, not after exhaustion\nof all other insurance.\n\nIII. Apportionment of Liability\n\n The district court allocated liability between Westport\nand California Casualty in the following manner. First, the\ncourt divided each Doe’s settlement equally across the\npolicy period(s) in which she alleged she was molested.\nNext, the court reduced each policy period amount by\n25 percent to reflect the District’s liability. Then, the court\ndeducted $1 million from each policy period in accordance\nwith Westport’s Primary policy limit. Finally, the court\nassessed liability against California Casualty up to $150,000\nfor each Administrator in each policy period. 5 In total, the\ndistrict court found California Casualty liable for\n\n\n\n 4\n California Casualty also notes that its low premium is indicative of\nits position as extreme excess coverage. This argument deserves only\nshort shrift. California Casualty does not point to any authority that\npremium size determines priority of coverage. Moreover, California\nCasualty’s corporate designee testified that the amount of the premium\ndoes not determine the policy’s order of payment.\n\n 5\n To illustrate, Doe 1’s $7 million settlement was divided into three\namounts of $2,333,333 for each of the policy periods 1993–94, 1994–\n95, and 1995–96. Next, in each of these periods, the court reduced the\namount by 25 percent to $1.75 million. Then, the court deducted\n$1 million of Westport’s primary limit, leaving $750,000. The court\nthen assessed $150,000 per administrator for a total of $450,000 against\nCalifornia Casualty.\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 15\n\n$2.6 million of the $15.8 million paid to the Does\ncollectively.\n\n California Casualty contends that it should not contribute\nto the Settlements for the following reasons: (1) the\nallocation of liability among the defendants was erroneous;\n(2) Westport did not pay the mandatory $1 million per\nadministrator per student per policy period; (3) California\nCasualty’s policy does not trigger until $1 million is paid per\nadministrator per student for each policy period; and\n(4) even if California Casualty were obligated to contribute,\nits apportioned contributions for the Administrators should\nprorate along with Westport’s policies. We consider each\nargument in turn.\n\n A. Allocation of Liability Among the Administrators\n and the District\n\n California Casualty first argues that the district court was\nunable to properly apportion any liability to it. Although\nCalifornia Casualty’s duty to defend did not rise until\nexhaustion of the primary layer of coverage, it denied excess\ncoverage in the face of settlement demands far exceeding the\nprimary layer. As the district court noted, in United Services\nAutomotive Association v. Alaska Insurance Co., 114 Cal.\nRptr. 2d 449, 453 (Ct. App. 2001), the court held that “when\nan excess insurer denies excess coverage for a third party\nclaim, it waives the right to challenge the reasonableness of\nthe primary insurer’s settlement of the claim.” Therefore,\nCalifornia Casualty has waived its argument that the lack of\ncontemporaneous allocation of liability in the Settlements\nprecludes subsequent apportionment.\n\n Because California Casualty is only liable for the\nAdministrators’ liability, it next argues that the district court\nerroneously allocated the Settlements equally among the\n\f16 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\nfour underlying defendants. Under California law, trial\ncourts have “equitable discretion to fashion a method of\nallocation suited to the particular facts of each case and the\ninterests of justice, subject to appellate review for abuse of\nthat discretion.” Golden Eagle Ins. Co. v. Ins. Co. of the\nWest, 121 Cal. Rptr. 2d 682, 693 (Ct. App. 2002). Moreover,\n“there is no single method of allocating defense or indemnity\ncosts among co-insurers.” Id.\n\n The district court divided liability equally among the\nfour defendants, and cited Great American Insurance Co. v.\nSequoia Insurance Co., 2016 WL 844819 (C.D. Cal. Mar. 1,\n2016), appeal dismissed, No. 16-56080 (9th Cir. Mar. 2,\n2018), in support of its decision. In Great American, the\ncourt determined that it had the discretion to allocate liability\nequally between the co-defendants in a case where the\nsettlement agreement did not specifically allocate\nresponsibility for the amounts to the defendants and both\ncauses of action were alleged against both defendants. 2016\nWL 844819, at 12. Similarly here, Does 1 and 2’s\ncomplaint raised four causes of action against all four\ndefendants, and the fifth cause of action against only\nunknown doe defendants. Doe 3’s complaint brought all\nclaims against all defendants. The three settlement\nagreements released the District and the Administrators from\nliability and did not differentiate among the defendants.\nGiven the blended pleadings and wording of the settlement\nagreements, the district court did not abuse its discretion in\nallocating the liability equally among the District and the\nthree Administrators. 6\n\n\n 6\n California Casualty argues that it was not the primary insurer,\nunlike the insurer in Great American, and therefore the four defendants\nshould not share liability evenly. However, the Great American court’s\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 17\n\n B. Westport’s Contribution\n\n California Casualty challenges the district court’s\nfinding that Westport only needed to pay $1 million per\noccurrence instead of $1 million per occurrence per insured,\ntotaling $3 million. We find California Casualty’s\narguments to be without merit.\n\n Although California Casualty’s policy and Westport’s\nPrimary policy define “occurrence” similarly, they differ on\nhow they cover liability per occurrence. Westport’s Primary\npolicy defines an occurrence as “an accident, including\ncontinuous or repeated exposure to conditions, which . . .\nresults in injury, or damages to which this insurance\napplies.” California Casualty’s policy defines an occurrence\nas “an event, including injurious exposure to conditions,\nwhich results in injuries and/or damage to one or more\npersons or legal entities . . . . An occurrence can involve a\nsingle sudden event or the continuous or repeated injurious\nexposure to conditions.” The district court held that, because\nunder California Casualty’s policy each Administrator is an\ninsured, California Casualty was required to pay $150,000\nper Administrator per occurrence per student for each policy\nperiod. Conversely, Westport’s Primary policy contains a\nclause that states the policy applies to each separate insured,\nbut “nothing herein shall operate to increase the Company’s\nliability . . . beyond the amount or amounts for which the\nCompany would have been liable if only one person or\ninterest had been named as insured.” Thus, the district court\n\n\ndivision of liability between co-defendants did not turn on the status of\nthe insurance companies, but rather on the pleadings and settlement\nagreements. Great American, 2016 WL 844819, at 12. In fact, in terms\nof actual monetary liability, the court ordered the co-primary insurer to\npay its $1 million limit, not half of the total $3 million settlement, despite\nits insured being apportioned “equal” liability. Id. at *13.\n\f18 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\nheld that under Westport’s Primary policy, Westport was\nrequired to cover $1 million per occurrence per student for\neach policy period, but not per administrator.\n\n California Casualty does not now challenge the district\ncourt’s decision that, under its policy, each “occurrence”\nrequires coverage per student per administrator for each\npolicy period. Instead, California Casualty now contends\nthat if each occurrence is so defined, then Westport should\nhave been required to pay $3 million per policy period\nbecause there were three Administrators, in the same manner\nthe district court ordered California Casualty to pay up to\n$450,000 per policy period. This argument is unavailing.\n\n As noted, Westport’s Primary policy contains a\nprovision explaining that although its policy insures each\nindividual employee separately, if multiple insureds are\nnamed, the policy operates to limit liability as “if only one\nperson . . . had been named as insured.” This provision\nclearly limits Westport’s liability in the present situation\nwherein multiple insureds—three Administrators and the\nDistrict—all allegedly failed to supervise the teacher.\nCalifornia Casualty’s policy contains no such limitation\nclause.\n\n C. California Casualty’s Contribution\n\n California Casualty next contends that its own obligation\ndoes not arise until $1 million is paid per insured regardless\nof the source—the Westport Primary policy, any other\npolicy, or through self-insurance. California Casualty’s\npolicy defines “the insured” as “a member of the Association\nof California School Administrators who is employed by a\nschool board, board of trustees or similar governing body of\nan educational unit.” According to California Casualty,\nWestport only paid $333,333.333 per each insured;\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 19\n\ntherefore, California Casualty’s policy does not trigger under\nits terms until some entity pays $1 million per insured.\nKeeping in mind that under California law insurance\ncoverage is to be construed broadly, we find Westport’s\npayment of $1 million per period did trigger California\nCasualty’s policy.\n\n First, California Casualty’s policy text does not support\nits interpretation of when its policy is triggered. California\nCasualty's policy states:\n\n At the time of an occurrence there must be\n underlying primary collectible insurance or\n self-insurance available to the insured . . .\n with a minimum per occurrence limit of\n $1,000,000.00. There shall be no insurance\n afforded under this policy until the required\n $1 million limit of liability afforded the\n insured by such other insurance or self-\n insurance is exhausted. (Emphasis added).\n\nThe phrase “such other insurance” is an antecedent phrase\nreferring back to the previous sentence, which defines the\nrequisite primary insurance as insurance “with a minimum\nper occurrence limit of $1,000,000.” Although California\nCasualty’s policy denotes a per occurrence limit, it does not\nrequire that the $1 million limit in the primary policy must\nalso apply per insured, as California Casualty now suggests\nit should. See State Farm Mut. Auto Ins. Co. v. Partridge,\n514 P.2d 123, (Cal. 1973) (holding “all ambiguities in an\ninsurance policy are construed against the insurer-\ndraftsman”).\n\n Furthermore, the Administrators complied with the\nwritten requirements of California Casualty’s policy in\nobtaining their primary policy. The California Casualty\n\f20 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\npolicy requires primary collectible insurance with a\n“minimum per occurrence limit of $1 million” be available\nto the insured pursuant to the Education Code or other\nprovisions governing insurance for public entities.\nWestport’s Primary policy was issued pursuant to the\nEducation Code provisions explicitly mentioned in\nCalifornia Casualty’s policy and provided a per occurrence\nlimit of $1 million. Therefore, each Administrator had the\nrequisite $1 million of primary insurance available to him.\n\n Second, California Casualty’s policy only requires that\nthis underlying insurance of $1 million “afforded the insured\nby such other insurance or self-insurance is exhausted.” This\nlanguage does not clearly require that $1 million be\nexhausted per insured or even for the same occurrence, just\nthat it be exhausted. Westport’s Primary policy covering\n$1 million was exhausted according to its terms. To\ninterpret California Casualty’s policy to require its insureds\nto obtain additional insurance in the event their primary\ninsurance exhausts prior to reaching the $1 million\ncontribution would create yet another potential layer of\ninsurance coverage that is not required by the policy itself.\nOn its face, California Casualty’s policy requires only the\nexhaustion of the underlying $1 million primary insurance\nbefore California Casualty’s coverage begins. That occurred\nhere.\n\n Imagine a hypothetical scenario wherein a prior\nsettlement or series of settlements exhausts Westport’s\nprimary insurance up to its annual aggregate limit of\n$3 million rendering Westport’s primary policy unable to\ncontribute to the $1 million of underlying insurance required\nby California Casualty’s policy. If California Casualty’s\ninterpretation of its policy were correct, California Casualty\nwould then provide zero coverage—because the $1 million\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 21\n\nper insured was not reached—contrary to its policy language\nthat it pays all damages in excess of the required underlying\ninsurance. This hypothetical illustrates the untenable\nposition California Casualty advances.\n\n Given that insurance exclusions must be “interpreted\nnarrowly against the insurer,” TRB Invs., 145 P.3d at 477,\nwe construe the ambiguity of California Casualty’s policy\nagainst it and in favor of its insureds. In sum, we hold that\nCalifornia Casualty’s policy coverage began upon\nexhaustion of Westport’s Primary policy when Westport\npaid $1 million per policy period per student.\n\n D. Proration of the Policies\n\n California Casualty also contends that its coverage\nshould prorate with Westport’s coverage. A pro rata clause\n“provides that if there is other valid and collectible\ninsurance, then the insurer shall not be liable for more than\nhis pro rata share of the loss.” Olympic Ins. Co. v. Emp’rs\nSurplus Lines Ins. Co., 178 Cal. Rptr. 908, 911 (Ct. App.\n1981). California courts tend to prorate the loss among co-\ninsurers with conflicting excess clauses. Id. This situation\noften occurs when both insurers on the same level have\nexcess clauses that deem the policy excess to other valid and\ncollectible insurance. See id. at 912 (prorating two primary\ninsurers’ policies where both purported to be excess to the\nother).\n\n The text of the insurance policies in this case belies\nCalifornia Casualty’s claim that they prorate. California\nCasualty’s policy plainly states that it “shall not be construed\nto be pro rata, concurrent or contributing with any other\ninsurance or self-insurance which is available to the\nInsured.” Further, California Casualty’s policy does not\noccupy the same level of insurance coverage as either of\n\f22 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\nWestport’s policies. As discussed, the exhaustion of\nWestport’s Primary policy triggers liability under California\nCasualty’s policy. Only when California Casualty’s policy\nis exhausted does Westport’s Excess policy become liable.\nWestport’s Excess policy clearly states, “If there is any other\ncollectible insurance available to the insured that covers a\nloss that is also covered by this policy, the insurance\nprovided by this policy will apply in excess of other\ncollectible insurance.” Accordingly, California Casualty’s\npolicy is sandwiched between Westport’s Primary and\nExcess policies. There is no conflict between California\nCasualty’s policy and either of Westport’s policies such that\nthey should prorate.\n\nIV. Prejudgment Interest\n\n California Casualty asserts that the district court should\nhave awarded prejudgment interest at seven percent, running\nfrom July 11, 2014—the date of Westport’s first demand\nletter for payment. The district court awarded prejudgment\ninterest at ten percent, running from the dates Westport paid\neach of the Settlements. We find no abuse of discretion in\nthe district court’s determination to award prejudgment\ninterest at ten percent from the dates Westport paid the\nSettlements.\n\n State law governs prejudgment interest in a diversity\naction. U.S. Fid. & Guar. Co. v. Lee Invs. LLC, 641 F.3d\n1126, 1139 (9th Cir. 2011). The California Constitution\ngenerally affixes the rate of prejudgment interest at seven\npercent per annum for judgments rendered in state courts\nunless specified otherwise by the legislature. Cal. Const.\nArt. 15, § 1. However, the California Civil Code sets\nprejudgment interest on contract actions at ten percent per\nannum if the rate is not otherwise stipulated in the contract.\nCal. Civ. Code § 3289. California Casualty argues that\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 23\n\nbecause Westport labeled its cause of action “equitable\ncontribution,” which is not a contract action, Westport\nshould only receive prejudgment interest at the rate of seven\npercent. Westport counters that the district court correctly\ndetermined that despite the characterization, its action was\none for equitable subrogation, which sounds in contract, and\nthat the district court properly awarded prejudgment interest\nat ten percent.\n\n The California Court of Appeal explained the difference\nbetween equitable contribution and equitable subrogation in\nFireman’s Fund Insurance Co. v. Maryland Casualty Co.,\n77 Cal. Rptr. 2d 296 (Ct. App. 1998). Equitable subrogation\nputs the insurer in the position of the insured “to pursue\nrecovery from third parties legally responsible to the insured\nfor a loss which the insurer has both insured and paid.”\nFireman’s Fund, 77 Cal. Rptr. 2d at 302. In contrast,\nequitable contribution is to “apportion a loss between two or\nmore insurers who cover the same risk, so that each pays its\nfair share and one does not profit at the expense of the\nothers.” Id. at 306.\n\n These definitions clarify that Westport incorrectly\nlabeled its cause of action as one for “equitable\ncontribution.” See K.C. Multimedia, Inc. v. Bank of Am.\nTech. & Operations, Inc., 90 Cal. Rptr. 3d 247, 261 (Ct. App.\n2009) (holding the facts, not the labels, in a pleading\ndetermine whether a plaintiff is entitled to relief). We do not\ninterpret California Casualty’s policy and Westport’s Excess\npolicy to “cover the same risk.” Instead, these two excess\npolicies create stratified levels of coverage within the excess\nlayer. Accordingly, the district court did not abuse its\ndiscretion in holding that notwithstanding the erroneous title\nfor its claim, Westport’s action is one for equitable\nsubrogation and entitled to ten percent prejudgment interest.\n\f24 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\n We similarly find meritless California Casualty’s\nargument regarding the date from which the prejudgment\ninterest should run. California Civil Code § 3287(a) states\nin pertinent part:\n\n Every person who is entitled to recover\n damages certain, or capable of being made\n certain by calculation, and the right to recover\n which is vested in him upon a particular day,\n is entitled also to recover interest thereon\n from that day, except during such time as the\n debtor is prevented by law, or by the act of\n the creditor from paying the debt . . . .\n\nCal. Civ. Code § 3287(a). The test for recovery under this\nprovision is “whether [the] defendant actually knows the\namount owed or from reasonably available information\ncould the defendant have computed that amount.”\nChildren’s Hosp. & Med. Ctr. v. Bonta, 118 Cal. Rptr. 2d\n629, 654 (Ct. App. 2002). When the allocation of liability\nturns on factual issues, damages are uncertain; however,\nwhen the allocation turns exclusively on legal issues,\ndamages are certain and interest is available. State v. Cont’l\nIns. Co., 223 Cal. Rptr. 3d 716, 735 (Ct. App. 2017). Where\nthe challenge concerns the interpretation of the relevant\npolicy language, the parties present a pure legal question. Id.\nat 736.\n\n California Casualty asserts that California’s mediation\nprivilege prevents disclosure of Westport’s letters it received\non May 30, 2014, June 10, 2014, and October 9, 2014, and\nof the settlement agreements themselves, and, therefore, that\ndamages did not become certain until July 11, 2014, , as\nopposed to July 29, 2013 and June 26, 2014.\n\f WESTPORT INS. V. CALIF. CASUALTY MGMT. 25\n\n California’s mediation privilege prohibits any writing\n“prepared for the purpose of, in the course of, or pursuant to,\na mediation or mediation consultation” to be admissible in\nany civil action in which testimony can be compelled to be\ngiven.” Cal. Evid. Code § 1119(b). In addition, “all\ncommunications . . . by and between participants in the\ncourse of a mediation” shall remain confidential. Cal. Evid.\nCode § 1119(c). While the district court erred in overruling\nCalifornia Casualty’s objection to the disclosure of these\nletters, 7 though not to the settlement agreements, 8 this error\ndoes not affect resolution of this issue, because the damages\nwere certain on the Settlements’ payment dates regardless of\nthe admissibility of the demand letters.\n\n In Continental Insurance, the court rejected the insurer’s\nargument that damages were uncertain because the\ncompanies disputed the number of covered occurrences.\n223 Cal. Rptr. at 737. The court determined that this dispute\n\n 7\n The district court overruled the objection pertaining to the letters,\nfinding that because they were between California Casualty’s corporate\nrepresentative and attorney and Westport’s attorney, they were not\nbetween the “disputants in the mediation.” The district court defined the\ndisputants solely as the Does, the District, and the Administrators.\nHowever, the mediation privilege “extends beyond discussions carried\nout directly between the opposing parties to the dispute, or with the\nmediator, or during the mediation proceedings themselves” to “all oral\nor written communications . . . made for the purpose of or pursuant to a\nmediation.” Cassel v. Super. Ct., 244 P.3d 1000, 1084 (Cal. 2011). The\nletters concerned Westport’s possibility of settling beyond its primary\nlimits during the mediation. Accordingly, they fall within the mediation\nprivilege under California law.\n\n 8\n See In re Marriage of Daly & Oyster, 175 Cal. Rptr. 3d 364, 368\n(Ct. App. 2014) (explaining that, under Cal. Evid. Code § 1123, the\nmediation privilege does not cover signed written settlement agreements\nproduced during mediation when the agreement contains terms\nsignifying the parties’ intent to be bound by it).\n\f26 WESTPORT INS. V. CALIF. CASUALTY MGMT.\n\nposed a question of liability that did not affect the certainty\nof damages. Id. The appellate court then upheld the trial\ncourt’s award of mandatory prejudgment interest from the\ndate of judgment. Id. at 720.\n\n The present case also concerns the interpretation and\nprioritization of the insurance policies at issue—all legal\nquestions. Accordingly, California Casualty is liable for\nprejudgment interest from the “date of settlement because\nthat is the date that the loss is certain or capable of being\nmade certain by calculation.” Id. at 735. We hold that the\ndistrict court did not abuse its discretion in awarding\nprejudgment interest from the dates on which Westport paid\nthe Settlements—July 29, 2013, and June 26, 2014. See\nHighlands Ins. Co. v. Cont’l Cas. Co., 64 F.3d 514, 522 (9th\nCir. 1995) (finding no abuse of discretion for prejudgment\ninterest to begin running on the insurer’s date of payment\nrather than the date of its complaint for reimbursement). On\nthese dates, Westport’s primary layer of coverage was\nexhausted, and Westport overpaid on its Excess policy due\nto California Casualty’s failure to provide its coverage.\n\n CONCLUSION\n\n We hold that California Government Code Section 825.4\ndoes not preclude Westport’s lawsuit against California\nCasualty, and we affirm the district court’s decision on all\nthe remaining issues raised on appeal.\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369346/", "author_raw": "M. SMITH, Circuit Judge:"}]}	RAYMOND C FISHER	MILAN D SMITH JR	LAWRENCE L PIERSOL	1	{"RAYMOND C FISHER": ", MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": ", MILAN D SMITH, JR , Circuit", "LAWRENCE L PIERSOL": "District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592093/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,110		Ming Dai v. William P. Barr	2019-02-22	15-70776	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Chief Judge, and Stephen S. Trott and Mary H. Murguia*, Circuit Judges.", "parties": "", "opinions": [{"author": "Prior to his death, Judge Reinhardt fully participated in this case", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MING DAI, No. 15-70776\n Petitioner,\n Agency No.\n v. A205-555-836\n\n WILLIAM BARR, Attorney General, ORDER AND\n Respondent. AMENDED\n DISSENT\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Submitted October 13, 2017\n San Francisco, California\n\n Filed March 8, 2018\n Amended February 22, 2019\n\n Before: Sidney R. Thomas, Chief Judge, and Stephen S.\n Trott and Mary H. Murguia*, Circuit Judges.\n\n\n \n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n \n Prior to his death, Judge Reinhardt fully participated in this case\nand authored the majority opinion. Following Judge Reinhardt’s death,\nJudge Murguia was drawn by lot to replace him. Ninth Circuit General\nOrder 3.2h. Judge Murguia has reviewed all case materials.\n\n2 DAI V. BARR\n\n Order;\n Dissent to Opinion by Judge Trott\n\n\n SUMMARY\n\n\n Immigration\n\n The panel granted a petition for review of the Board of\nImmigration Appeals’ denial of asylum and withholding\nrelief.\n\n The panel held that because neither the immigration\njudge nor the Board made an explicit adverse credibility\ndetermination, this court must accept Dai’s testimony as true.\nThe panel explained that the REAL ID Act added a provision\ncreating a rebuttable presumption of credibility where the IJ\nfails to make an explicit adverse credibility determination, but\nthat presumption is rebuttable only before the Board, and is\nnot rebuttable on petition for review before this court.\n\n The panel held that Dai’s evidence was sufficiently\npersuasive, and compelled the conclusion that the harm he\nsuffered from the government due to his resistance to his\nwife’s forced abortion rose to the level of past persecution.\n\n The panel held that because Dai and his wife were not\nsimilarly situated, the Board erred in concluding that Dai’s\nwife’s voluntary return to China undermined his own fear of\nfuture persecution. The panel further held that in the absence\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n DAI V. BARR 3\n\nof an adverse credibility determination, the Board erred in\nrelying on Dai’s untruthfulness about his wife’s voluntary\nreturn to China in concluding that he failed to meet his\nburden of proof. The panel also noted Dai’s valid asylum\nclaim was not undermined by the fact that he may have had\nadditional reasons (beyond escaping persecution) for coming\nto or remaining in the United States, including seeking\neconomic opportunity.\n\n The panel held that because Dai established past\npersecution, he was entitled to a rebuttable presumption of\nfuture persecution, which the government did not attempt to\nrebut with evidence of changed country conditions. The\npanel stated that giving the government the opportunity to\npresent such evidence at this point would be exceptionally\nunfair, and thus, Dai established that he was eligible for\nasylum. The panel remanded for an exercise of discretion of\nwhether to grant Dai asylum relief, and to grant Dai\nwithholding relief.\n\n In his amended dissent, Judge Trott wrote that the serious\nlegal consequences of the majority opinion as a circuit\nprecedent are that it (1) demolishes both the purpose and the\nsubstance of the REAL ID Act (2) disregards the appropriate\nstandard of review, and (3) perpetuates this court’s\nidiosyncratic approach to an IJ’s determination that the\ntestimony of an asylum seeker lacks sufficient credibility or\npersuasiveness to prove his case.\n\n4 DAI V. BARR\n\n COUNSEL\n\nDavid Z. Su, Law Offices of David Z. Su, West Covina,\nCalifornia, for Petitioner.\n\nAimee J. Carmichael, Senior Litigation Counsel; Mary Jane\nCandaux, Assistant Director; Office of Immigration, Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Respondent.\n\n\n ORDER\n\n The dissent filed March 8, 2018, is amended, with the\nfollowing amended dissent to be substituted in lieu of the\noriginal. The petitions for rehearing and rehearing en banc\nremain pending, and no further action is required of the\nparties until further order of the court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370363/", "author_raw": "Prior to his death, Judge Reinhardt fully participated in this case"}, {"author": "TROTT, Circuit Judge, dissenting", "type": "dissent", "text": "TROTT, Circuit Judge, dissenting:\n\n The serious legal consequences of my colleagues’ opinion\nare that it (1) disregards both the purpose and the substance\nof the REAL ID Act of 2005 (“Act”)1, (2) ignores the\nappropriate standard of review, and (3) perpetuates our\nidiosyncratic approach to an Immigration Judge’s (“IJ”)\ndetermination that the testimony of an asylum seeker lacks\nsufficient credibility or persuasiveness to prove his case.\nThe majority’s opinion accomplishes these results by\ncontaminating the issue before us with irrelevancies, the most\n\n\n 1\n Pub. L. No. 109-13, 119 Stat. 231.\n\n DAI V. BARR 5\n\ntroublesome of which is a meritless irrebuttable presumption\nof credibility. The sole issue should be whether Dai’s\nunedited presentation compels the conclusion that he carried\nhis burden of proving he is a refugee and thus eligible for a\ndiscretionary grant of asylum. Only if we can conclude that\nno reasonable factfinder could fail to find his evidence\nconclusive can we grant his petition.\n\n The IJ’s decision not to make an explicit adverse\ncredibility finding is a red herring that throws our analysis off\nthe scent and preordains a result that is incompatible with the\nevidentiary record. By omitting from their opinion the IJ’s\nfact-based explanation of his decision, the majority elides\neight material findings of fact the IJ did make, each of which\nis entitled to substantial deference. The majority’s assertion\nthat “there is no finding to which we can defer” is false. For\nthis reason, I quote in full the IJ’s findings and conclusions\nabout the persuasiveness of Dai’s presentation in Part IV of\nmy dissent. The eight findings are as follows.\n\n First, the IJ specifically found that the information\nreported by the asylum officer about his conversation with\nDai was accurate. The IJ said,\n\n As to the contents of [the asylum officer’s\n notes], I give the notes full weight, insofar as\n the respondent has confirmed the contents of\n the questions and answers given during the\n course of that interview. Furthermore, I note\n that in the sections in which the respondent\n equivocated, stating that he was nervous and\n not sure that he gave those precise answers, I\n nevertheless give the Asylum Officer’s notes\n some substantial weight, in that they are\n\n6 DAI V. BARR\n\n consistent with the respondent’s testimony in\n court.\n\n Accordingly, the IJ accepted as a fact that Dai admitted\nthat he did not disclose the consequential truth about his\nwife’s and daughter’s travels because he was nervous about\nhow this would be perceived by the asylum officer in\nconnection with his claim.\n\n Second, the IJ accepted Dai’s admission as a fact that he\nconcealed the truth because he was afraid of giving straight\nanswers regarding his wife’s and daughter’s trip to the United\nStates.\n\n Third, the IJ determined that Dai had deliberately omitted\nhighly relevant information from his Form I-589 application\nfor asylum, information that he also tried to conceal from the\nasylum officer.\n\n Fourth, the IJ found that Dai’s omission of his\ninformation “is consistent with his lack of forthrightness\nbefore the asylum office[r] as to his wife and daughter’s\ntravel with him. . . .”\n\n Fifth, the IJ credited Dai’s admission that when asked by\nthe asylum officer to “tell the real story” about his family’s\ntravels, Dai said he “wanted a good environment for his child,\nand his wife had a job, but he did not, and that is why he\nstayed here [after his wife and daughter went back to China].\n\n Sixth, the IJ found that Dai admitted he stayed here after\nthey returned “because he was in a bad mood and he wanted\nto get a job and ‘a friend of mine is here.’”\n\n DAI V. BARR 7\n\n Seventh, the IJ said “I do not find that [Dai’s]\nexplanations for [his wife’s] return to China while he\nremained here are adequate.” (Emphasis added).\n\n Finally, the IJ also credited Dai’s concessions that his\nwife and daughter returned to China because “his daughter’s\neducation would be cheaper in China,” and that “his wife\nwanted to go to take care of her father.”\n\n When Dai’s subterfuge got to the BIA, the BIA said in its\ndecision that “the record reflects that [Dai] failed to disclose\nto both the asylum officer and the IJ” the true facts about his\nfamily’s travels. The BIA noted that Dai had conceded he\nwas not forthcoming about this material information because\nhe believed that the truth about their travels “would be\nperceived as inconsistent with his claims of past and feared\npersecution.”\n\n The IJ’s specific factual findings in connection with Dai’s\nfailure to satisfy his burden of proof were not the product of\ninferences drawn from circumstantial evidence. These\nfindings were directly based upon revealing answers Dai\nadmitted he gave to the asylum officer during his interview.\nThese facts are beyond debate, and they undercut Dai’s case.\nTo quote the BIA, these facts were “detrimental to his claim”\nand “significant to his burden of proof.” Nevertheless, the\nmajority brushes them aside, claiming that an immaterial\npresumption of credibility overrides all of them.\n\n In this connection, I note a peculiarity in the majority’s\napproach to Dai’s case: Nowhere does Dai assert that he is\nentitled to a conclusive presumption of credibility. His brief\ndoes not contain any mention of the presumption argument\nthe majority conjures up on his behalf. The closest Dai\n\n8 DAI V. BARR\n\ncomes to invoking the majority’s inapt postulate is with a\nstatement that we “should” treat as credible his testimony\nregarding persecution in China. He does not take issue with\nthe IJ’s foundational adverse factual findings, choosing\ninstead to argue that they were not sufficient in the light of\nthe record as a whole to support the IJ’s ultimate\ndetermination.\n\n For example, Dai acknowledges in his brief that the “IJ’s\nor BIA’s factual findings are reviewed for substantial\nevidence” and that the “REAL ID Act’s new standards\ngoverning adverse credibility determinations applies to\napplications for asylum, withholding of removal, and CAT\nrelief made on or after May 11, 2005.” Blue Br. 10\n(emphasis added) (quotation marks omitted). Next, he notes\nthat “an IJ cannot selectively examine evidence in\ndetermining credibility, but rather must present a reasoned\nanalysis of the evidence as a whole and cite specific instances\nin the record that form the basis of the adverse credibility\nfinding.” Id. (emphasis added) (quotation marks omitted).\nMoreover, Dai notes that “[t]o support an adverse credibility\ndetermination, inconsistencies must be considered in light of\nthe totality of the circumstances, and all relevant factors”\nadding that “trivial inconsistencies . . . should not form the\nbasis of an adverse credibility determination.” Id. at 10–11\n(emphasis added) (quotation marks omitted). He contends\nthat he “has provided adequate explanation” for his\ninconsistencies, i.e., the failure to disclose his family’s\ntravels. Id. at 14. Finally, after attempting to pick apart the\nIJ’s adverse findings, Dai’s bottom line is that “his wife’s\ndeparture from the United States does not adversely affect his\ncredibility at all,” an assertion that ignores his failed coverup\nof it. See id. at 16.\n\n DAI V. BARR 9\n\n In summary, the majority blue pencils a material part of\nthe evidentiary record even though Dai implores us to\n“examine it as a whole,” as he did in his brief to the BIA. Dai\naccepts that the viability of his entire presentation is on the\nline, but the majority ignores his concession. In this\nconnection, the Attorney General has responded only to the\nclaims and arguments Dai included in his brief. The Attorney\nGeneral has not been given an opportunity to respond to the\nmajority’s inventive analysis, nor to the theory concocted by\nthe majority on Dai’s behalf. Both sides will be surprised by\nmy colleagues’ artful opinion—Dai pleasantly, the Attorney\nGeneral not so much.\n\n I will have more to say in Part V about our Circuit’s\ntreatment of the role, responsibility, and product of an asylum\nofficer.\n\n For these reasons, I respectfully dissent.\n\n I\n\n Backdrop\n\n Over the years, our Circuit has manufactured misguided\nrules regarding the credibility of political asylum seekers. I\nbegin with this issue because the majority’s mishandling of\nit infects the remainder of their opinion with error. These\nresult-oriented ad hoc hurdles for the government stem from\nhumanitarian intentions, but our court has pursued these\nintentions with methods that violate the institutional\ndifferences between a reviewing appellate court, on one hand,\nand a trial court on the other, usurping the role of the\nDepartment of Homeland Security (“DHS”) and the BIA in\nthe process. Referring to our approach to witness credibility\n\n10 DAI V. BARR\n\nas an “idiosyncratic analytical framework,” a previous panel\nof our court described this inappropriate situation as follows:\n\n The Supreme Court has repeatedly instructed\n us on the proper standard to apply when\n reviewing an immigration judge’s adverse\n credibility determination. Time and again,\n however, we have promulgated rules that tend\n to obscure that clear standard and to flummox\n immigration judges, who must contort what\n should be a simple factual finding to satisfy\n our often irreconcilable precedents. The\n result of this sly insubordination is that a\n panel that takes Congress at its word and\n accepts that findings of fact are “conclusive\n unless any reasonable adjudicator would be\n compelled to conclude the contrary,” . . . or\n follows the Supreme Court’s admonition that\n “[t]o reverse the BIA finding we must find\n that the evidence not only supports that\n conclusion, but compels it,” . . . runs a serious\n risk of flouting one of our eclectic, and\n sometimes contradictory, opinions.\n\nJibril v. Gonzales, 423 F.3d 1129, 1138 (9th Cir. 2005)\n(alteration in original) (citations omitted).\n\n Many of our Circuit’s rules on this subject and my\ncolleagues’ decision are irreconcilable with the structural\nprinciple set forth in Federal Rule of Civil Procedure 52(a)(6)\nthat “[f]indings of fact, whether based on oral or other\nevidence, must not be set aside unless clearly erroneous, and\nthe reviewing court must give due regard to the trial court’s\nopportunity to judge the witnesses’ credibility.” Accordingly,\n\n DAI V. BARR 11\n\nwe are expected to apply a highly deferential standard to a\ntrial court’s determination regarding the credibility of a\nwitness. Anderson v. City of Bessemer City, 470 U.S. 564,\n573–76 (1985). In discussing this rule, the Supreme Court\nsaid that “[w]hen findings are based on determinations\nregarding the credibility of witnesses, Rule 52(a) demands\neven greater deference to the trial court’s findings; for only\nthe trial judge can be aware of the variations in demeanor and\ntone of voice that bear so heavily on the listener’s\nunderstanding of and belief in what is said.” Id. at 575. The\nCourt added that the applicable “clearly erroneous” standard\nof review “plainly does not entitle a reviewing court to\nreverse the finding of a trier of fact simply because it is\nconvinced that it would have decided the case differently.\nThe reviewing court oversteps the bounds of its duty under\nRule 52(a) if it undertakes to duplicate the role of the lower\ncourt.” Id. at 573 (emphasis added).\n\n The Supreme Court sharpened this point about our limited\nrole in Gonzales v. Thomas, 547 U.S. 183 (2006) (per\ncuriam), vacating 409 F.3d 1177 (9th Cir. 2005) (en banc).\nIn summarily vacating our en banc opinion, the Court held\nthat we had exceeded our authority and made a determination\nthat belonged to the BIA. 547 U.S. at 185–86. The Court\nagreed with the Solicitor General that “a court’s role in an\nimmigration case is typically one of review, not of first view.”\nId. at 185 (emphasis added) (quotation marks omitted). To\nsupport its conclusion, the Court cited INS v. Orlando\nVentura, 537 U.S. 12 (2002): a “‘judicial judgment cannot be\nmade to do service for an administrative judgment.’” 547\nU.S. at 186 (quoting Ventura, 537 U.S. at 16). More about\nVentura later.\n\n12 DAI V. BARR\n\n The majority’s opinion’s use of an incongruous\nirrebuttable presumption of credibility to erase the IJ’s\nfindings of fact and the BIA’s decision and thus to make us\na court of “first view” is another example of our\nintransigence. If, as they say, we are bound by precedent to\ndo it their way, then its time to change our precedent.\n\n II\n\n A False Premise\n\n The majority opinion’s assertion that “we must treat\n[Dai’s] testimony as credible” rests on a fallacious premise.\nJudge Reinhardt writes, “Properly understood, the rebuttable\npresumption provision of the REAL ID Act applies only to\nappeals to the BIA, not to petitions for review in our court.”\nFrom this inapt premise, he concludes that we must ignore the\nIJ’s detailed analysis and findings of fact about Dai’s\npresentation. When it comes to our task of reviewing the\ncredibility of witnesses in a trial court or whether a witness’\ntestimony suffices to carry his burden of proof, however,\nthere is no material difference between an appeal and a\npetition for review, none. Federal Rule of Civil Procedure\n52(a) makes no such distinction. As Anderson said, Rule\n52(a) applies to a “reviewing court,” which is what we are in\nthis capacity. 470 U.S. at 573–74 (emphasis added); see\nThomas, 547 U.S. at 185. Neither the Court nor Rule 52(a)\ndifferentiate between appeals and petitions for review. Nor\nwould such a distinction make any sense. As Anderson and\nThomas illustrate, the issue is one of function, not of form or\nlabels. The Act’s use of the word “appeal” does not dictate\nhow we must go about our process of review. Using the\nstandards provided by Congress, we are not in a position to\nweigh a witness’s credibility or persuasiveness.\n\n DAI V. BARR 13\n\n Federal Rule of Appellate Procedure 20, “Applicability of\nRules to the Review or Enforcement of an Agency Order,”\nillustrates the soundness of treating appeals and petitions for\nreview with a uniform approach. Rule 20 reads, “All\nprovisions of these rules . . . apply to the review or\nenforcement of an agency order. In these rules, ‘appellant’\nincludes a petitioner or applicant, and ‘appellee’ includes a\nrespondent.”\n\n Moreover, and directly to the point, the Act itself does not\nrequire an IJ to make a specific credibility finding in those\nprecise terms. As the BIA correctly said with respect to the\nAct, “[c]ontrary to the respondent’s argument on appeal, the\nImmigration Judge need not have made an explicit adverse\ncredibility finding to nevertheless determine that the\nrespondent did not meet his burden of proving his asylum\nclaim.” See discussion infra Section VI. If the IJ does not\nmake such an explicit finding, all the respondent is entitled\nto is a “rebuttable presumption of credibility on appeal.”\n8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). By\nattempting to restrict this language to an appeal to the BIA,\nthe majority opinion frees itself to apply derelict Ninth\nCircuit precedent to Dai’s testimony and automatically to\ndeem it credible.2\n\n My colleagues claim that in the absence of a formal\nadverse credibility finding, “we are required to treat the\npetitioner’s testimony as credible.” The practical effect of the\nmajority’s rule is breathtaking: The lack of a formal adverse\n\n\n 2\n The majority cites She v. Holder, 629 F.3d 958, 964 & n.5 (9th Cir.\n2010) in support of this ipse dixit claim. However, She’s footnote 5 says\nthat because the “rebuttable presumption” provision does not apply\nretroactively, it had no applicability in She’s case.\n\n14 DAI V. BARR\n\ncredibility finding becomes a selective positive credibility\nfinding and dooms a fact-based determination by an IJ and\nthe BIA that an applicant’s case is not sufficiently persuasive\nto carry his burden of proof. The majority’s approach\nviolates all the rules that control our review of a witness’s\ntestimony before a factfinder.\n\n A conclusive presumption of credibility has no valid place\nin our task of reviewing the persuasiveness of a witness’s\ntestimony. Such an artifice eliminates relevant factual\nevidence from consideration and violates Rule 52(a)(6). The\ndeployment of a conclusive presumption becomes a\nmisguided way not only of putting a heavy thumb on one tray\nof the traditional scales of justice, but also of removing\nrelevant evidence from the other. This approach allows us to\nevade our responsibilities to examine and to evaluate the\nentire record before an IJ, permitting us instead to disregard\nfacts that would otherwise discredit our final determination.\nThe evidentiary record in this case devours any such\npresumption. Judge Reinhardt’s opinion writes the REAL ID\nAct and its reference to a rebuttable presumption of\ncredibility out of existence, even though Congress\nspecifically intended the Act to govern us, the Ninth Circuit\nCourt of Appeals.\n\n Although the case focuses on corroboration of an\napplicant’s testimony, our opinion in Aden v. Holder,\n589 F.3d 1040 (9th Cir. 2009) correctly explained the effect\nof the REAL ID Act on our pre-Act jurisprudence.\n\n We have a line of circuit authority for the\n proposition that corroboration cannot be\n required from an applicant who testifies\n credibly. In Ladha v. INS, [215 F.3d 889, 901\n\n DAI V. BARR 15\n\n (9th Cir. 2000)] we ‘reaffirmed that an alien’s\n testimony, if unrefuted and credible, direct\n and specific, is sufficient to establish the facts\n testified without the need for any\n corroboration.’ Kataria v. INS [232 F.3d\n 1107, 1113 (9th Cir. 2000)] relied on Ladha in\n stating that ‘the BIA may not require\n independent corroborative evidence from an\n asylum applicant who testifies credibly in\n support of his application.’ Kataria stated\n that ‘we must accept an applicant’s testimony\n as true in the absence of an explicit adverse\n credibility finding.’. . .\n\n Congress abrogated these holdings in the\n REAL ID Act of 2005. . . .\n\n The statute additionally restricts the effect of\n apparently credible testimony by specifying\n that the IJ need not accept such testimony as\n true. . . .\n\n Congress has thus swept away our doctrine\n that ‘when an alien credibly testifies to certain\n facts, those facts are deemed true.’\n\nAden, 589 F.3d at 1044-45. More on the Act in the next\nsection.\n\n16 DAI V. BARR\n\n III\n\n The REAL ID Act\n\n Congress enacted the REAL ID Act of 2005 because of\nour Circuit’s outlier precedents on this issue and our refusal\nto follow the rules. The House Conference Committee\nReport (“House Report”)3 explained that “the creation of a\nuniform standard for credibility is needed to address a\nconflict . . . between the Ninth Circuit on one hand and other\ncircuits and the BIA.” H.R. Rep. No. 109-72 at 167. The\nHouse Report also said that the Act “resolves conflicts\nbetween administrative and judicial tribunals with respect to\nstandards to be followed in assessing asylum claims.” Id. at\n162. Nevertheless, my colleagues hold that a key part of the\nAct does not apply to us, only to the BIA.\n\n As the Act pertains to this case, it established a number of\nkey principles, all of which the majority fails to follow,\nperpetuating the conflicts Congress attempted to resolve.\n\n First, “[t]he burden of proof is on the applicant to\nestablish that the applicant is a refugee . . . .”4\n\n Second, “[t]he testimony of the applicant may be\nsufficient to sustain the applicant’s burden without\ncorroboration, but only if the applicant satisfies the trier of\nfact that the applicant’s testimony is credible, is persuasive,\n\n\n\n 3\n H.R. Rep. No. 109-72 (2005) (Conf. Rep.), reprinted in 2005\nU.S.C.C.A.N. 240.\n 4\n 8 U.S.C. § 1158(b)(1)(B)(i).\n\n DAI V. BARR 17\n\nand refers to specific facts sufficient to demonstrate that the\napplicant is a refugee.”5\n\n Third,\n\n Considering the totality of the circumstances,\n and all relevant factors, a trier of fact may\n base a credibility determination on the\n demeanor, candor, or responsiveness of the\n applicant or witness, the inherent plausibility\n of the applicant’s or witness’s account, the\n consistency between the applicant’s or\n witness’s written and oral statements\n (whenever made and whether or not under\n oath, and considering the circumstances under\n which the statements were made), the internal\n consistency of each such statement, the\n consistency of such statements with other\n evidence of record (including the reports of\n the Department of State on country\n conditions), and any inaccuracies or\n falsehoods in such statements, without regard\n to whether an inconsistency, inaccuracy, or\n falsehood goes to the heart of the applicant’s\n claim, or any other relevant factor. There is\n no presumption of credibility, however, if no\n adverse credibility determination is explicitly\n made, the applicant or witness shall have a\n rebuttable presumption of credibility on\n appeal.6\n\n\n 5\n 8 U.S.C. § 1158(b)(1)(B)(ii) (emphasis added).\n 6\n 8 U.S.C. § 1158(b)(1)(B)(iii).\n\n18 DAI V. BARR\n\n We have attempted in a number of panel opinions after\nthe Act to adjust our approach to applicant credibility and\npersuasiveness issues, but as the majority opinion illustrates,\n“old ways die hard.” Huang v. Holder, 744 F.3d 1149 (9th\nCir. 2014) captures where we should be on this issue:\n\n [W]e have concluded that “the REAL ID Act\n requires a healthy measure of deference to\n agency credibility determinations.” This\n deference “makes sense because IJs are in the\n best position to assess demeanor and other\n credibility cues that we cannot readily access\n on review.” “[A]n immigration judge alone is\n in a position to observe an alien’s tone and\n demeanor, to explore inconsistencies in\n testimony, and to apply workable and\n consistent standards in the evaluation of\n testimonial evidence.” By virtue of their\n expertise, IJs are “uniquely qualified to decide\n whether an alien’s testimony has about it the\n ring of truth.”\n\n The need for deference is particularly strong\n in the context of demeanor assessments. Such\n determinations will often be based on non-\n verbal cues, and “[f]ew, if any, of these\n ephemeral indicia of credibility can be\n conveyed by a paper record of the\n proceedings and it would be extraordinary for\n a reviewing court to substitute its second-hand\n impression of the petitioner’s demeanor,\n candor, or responsiveness for that of the IJ.”\n Indeed, even before the enactment of the\n REAL ID Act, we recognized the need to give\n\n DAI V. BARR 19\n\n “special deference to a credibility\n determination that is based on demeanor,”\n because the important elements of a witness’s\n demeanor that “may convince the observing\n trial judge that the witness is testifying\n truthfully or falsely” are “entirely unavailable\n to a reader of the transcript, such as the Board\n or the Court of Appeals.” The same\n principles underlie the deference we accord to\n the credibility determinations of juries and\n trial judges.\n\nId. at 1153–54 (alterations in original) (citations omitted).\nThis “healthy measure of deference” should also apply to the\nagency’s determination with respect to whether an applicant\nhas satisfied the agency’s “trier of fact”—not us—that his\nevidence is persuasive, an issue that is in the wheelhouse of\na jury or a judge or an IJ hearing a case as a factfinder.\n\n In Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007), the First\nCircuit understood the Act’s effect on the issue of an\napplicant’s credibility. Not only did our sister circuit\ncorrectly comprehend the Act’s impact, but it considered and\nrejected our approach to this important subject.\n\n Kho supplements his ‘disfavored group’\n approach with an argument that because the IJ\n did not make an explicit finding concerning\n Kho’s credibility, his testimony ‘must be\n accepted as true’ by this court. Kho bases this\n proposed rule as well on a series of Ninth\n Circuit cases. . . .\n\n20 DAI V. BARR\n\n We have already rejected the proposition that\n aliens are entitled to a presumption of\n credibility on review in this court if there is no\n express credibility determination made by an\n IJ. . . .\n\n The REAL ID Act also provides no support\n for Kho's argument. . . .\n\nKho, 505 F.3d at 56-57.\n\n The court further explained that the Act’s reference to a\n“rebuttable presumption” applies only to an applicant’s\nappeal to the BIA, not to “reviewing courts of appeal.” Id. at\n56.\n\n Thus, not only does my colleagues’ opinion violate the\ndirections of the Act, but it creates an intercircuit conflict\nwith Kho, and an intra-circuit conflict with Aden.\n\n IV\n\n The IJ’s Decision\n\n The IJ in this case concluded that Ming Dai had not\nsatisfied his statutory burden of establishing that he is a\nrefugee pursuant to § 1158(b)(1)(B)(i). The IJ gave as his\n“principle area of concern” Dai’s implausible unpersuasive\ntestimony, another way of saying it wasn’t credible. As Dai’s\nbrief correctly demonstrates, there is barely a dime’s worth of\nsubstantive difference between “credible” and “persuasive.”\nHere is how the IJ explained his decision in terms of\n§ 1158(b)(1)(B)(i) and (ii):\n\n DAI V. BARR 21\n\nI have carefully considered the respondent’s\ntestimony and evidence and for the following\nreasons, I find that the respondent has failed\nto meet his burden of proving eligibility for\nasylum.\n\nThe principal area of concern with regard to\nthe respondent’s testimony arose during the\ncourse of his cross-examination. On cross-\nexamination, the respondent was asked about\nvarious aspects of his interview with an\nAsylum Officer. The Department of\nHomeland Security also submitted the notes\nof that interview as Exhibit 5. The respondent\nwas asked specific questions regarding several\naspects of his testimony before the Asylum\nOfficer. In the course of cross-examination,\nthe respondent was asked regarding his\nquestions and answers as to whether his wife\nand daughter travelled with him to the United\nStates. The respondent’s responses included\nthe question of whether the asylum officer had\nasked him if his wife and daughter travelled\nanywhere other than to Taiwan and Hong\nKong. The respondent conceded that he was\nasked this question and that he replied yes,\nthey had travelled to Taiwan and Hong Kong.\nThe respondent was asked whether the\nAsylum Officer inquired whether his wife and\ndaughter had travelled elsewhere. The\nrespondent then testified before the Court that\nhe was asked this question, “but I was\nnervous.” In this regard, I note that the\nrespondent did not directly answer the\n\n22 DAI V. BARR\n\n question; instead leapt directly to an\n explanation for what his answer may have\n been, namely that he was nervous. The\n respondent was then asked specifically\n whether the Asylum Officer asked him if his\n wife had travelled to Australia in 2007. The\n respondent confirmed that he had been asked\n this question, and he confirmed that the\n answer was in the affirmative. The\n respondent also confirmed that the Asylum\n Officer had asked him whether she had\n travelled anywhere else. He confirmed that he\n had been so asked. The respondent was then\n asked whether he answered “no,” that she had\n not travelled anywhere else. The respondent\n answered that he believed so, that he had so\n answered. The respondent was then asked,\n during the course of cross-examination, why\n he had not said to the Asylum Officer that yes,\n she had travelled to the United States. The\n respondent replied that he had not thought of\n it. He stated that they did come with him\n (meaning his wife and daughter) and that he\n thought the Asylum Officer was asking him if\n they had travelled anywhere other than the\n United States. He explained that he did so\n because he assumed the U.S. Government had\n the records of their travel to the United States.\n On further questioning, the respondent\n eventually hesitated at some length when\n asked to further explain why he did not\n disclose spontaneously to the Asylum Officer\n that his wife and daughter had come with him.\n The respondent paused at some length and I\n\n DAI V. BARR 23\n\nobserved that the respondent appeared\nnervous and at a loss for words. However,\nafter a fairly lengthy pause, the respondent\ntestified that he is afraid to say that his wife\nand daughter came here and why they went\nback. The respondent was asked whether he\ntold the Asylum Officer that he was afraid to\nanswer directly. The respondent initially\ntestified that he forgot and did not remember\nwhether he said that. He again reiterated that\nhe was very nervous. He was then asked the\nquestion again as to whether he told the\nAsylum Officer that he was afraid to answer\nwhy his wife and daughter had gone back. He\nthen conceded that maybe, yes, he had\nanswered in that fashion. The respondent was\nasked whether the Asylum Officer inquired\nwhy his wife and daughter went back, and the\nrespondent conceded that he had been so\nasked, and he further conceded that he replied\nbecause school in the United States cost a lot\nof money (referring to the schooling for his\ndaughter). The respondent was then asked to\nconfirm that the Asylum Officer eventually\nasked him to tell him the real story as to why\nhis family travelled to the United States and\nreturned to China. The respondent confirmed\nthat he was asked this question and when\nasked, whether he replied that it was because\nhe wanted a good environment for his child\nand because his wife had a job and he did not\nand that that is why he stayed here. He\nconfirmed that he did, in fact, say that. The\nrespondent was further asked, during the\n\n24 DAI V. BARR\n\n course of testimony in court, why his wife and\n daughter returned to China. In this regard, the\n respondent testified that they came with him,\n but returned to China several weeks after\n arrival. He testified that they did so because\n his father-in-law was elderly and needed\n attention, and because his daughter needed to\n graduate school in China.\n\n The respondent further claimed that his wife\n had, in fact, suffered past persecution in the\n form of a forced abortion and the respondent\n confirmed that he feared his wife and\n daughter would suffer future persecution. In\n this regard, the respondent qualified his\n answer by saying that his wife was now on an\n IUD, apparently thereby suggesting that the\n risk of persecution is reduced. However, the\n respondent did concede that the risk of future\n persecution also pertains to his daughter.\n Indeed, in this regard, the respondent testified\n that this is, at least in part, why he applied for\n asylum.\n\n As to the contents of Exhibit 5, I give the notes\n full weight, insofar as the respondent has\n confirmed the contents of the questions and\n answers given during the course of that\n interview. Furthermore, I note that in the\n sections in which the respondent equivocated,\n stating that he was nervous and not sure that\n he gave those precise answers, I nevertheless\n give the Asylum Officer’s notes some\n substantial weight, in that they are consistent\n\n DAI V. BARR 25\n\nwith the respondent’s testimony in court.\nSpecifically, I note that the Asylum Officer’s\nnotes state that the respondent ultimately\nindicated that he was afraid of giving straight\nanswers regarding his daughter and wife’s trip\nto the United States and return to China. And\nwhile the respondent did not confirm this in\ncourt, he did give a similar answer as to why\nhe was testifying in this regard. In other\nwords, the respondent appears to have stated,\nboth before the Asylum Officer and in court\nthat he did not spontaneously disclose the\ntravel of his wife and daughter with him to the\nUnited States and their return because he was\nnervous about how this would be perceived by\nthe Asylum Officer in connection with his\nclaim. I further note that the Asylum\nOfficer’s notes are internally consistent with\nregard to references to earlier questions, such\nas whether the respondent had stated that he\napplied for a visa with anyone else. At page 2\nof the notes contained in Exhibit 5, the\nrespondent was asked whether he applied for\nhis visa with anyone else and the notes\nindicated that he stated that, “no, I applied by\nmyself.” Similarly, I note that the testimony\nbefore the Asylum Officer and the Court is\nconsistent with the omission in the\nrespondent’s Form I-589 application for\nasylum, of an answer to the question of the\ndate of the previous arrival of his wife, if she\nhad previously been in the United States. See\nExhibit 2, page 2, part A.II, question 23.\nWhen asked about this omission, the\n\n26 DAI V. BARR\n\n respondent expressed surprise, stating that he\n told the preparer about their trip and indicated\n that he thought it had been filled out.\n Notwithstanding the respondent’s statement in\n this regard, I do observe that the omission is\n consistent with his lack of forthrightness\n before the asylum office as to his wife and\n daughter’s travel with him to the United\n States and their subsequent return to China\n shortly thereafter.\n\n In sum, the respondent’s testimony before the\n Court and his testimony regarding the Asylum\n Officer notes, as well as the notes themselves,\n clearly indicate that the respondent failed to\n spontaneously disclose that his wife and\n daughter came with him and then returned to\n China. His testimony and the notes also\n consistently demonstrate that the respondent\n paused at length, both before the Court and\n before the Asylum Officer, when asked about\n this topic. His testimony and the Asylum\n Officer notes are also consistent in indicating\n that he ultimately testified that he was afraid\n to say that his wife came here and was afraid\n of being asked about why she went back.\n Furthermore, the respondent has conceded\n that he was asked to “tell the real story”\n about his family’s travel to the United States\n by the Asylum Officer, and that he replied that\n he wanted a good environment for his child\n and his wife had a job, but he did not, and\n that is why he stayed here.\n\n DAI V. BARR 27\n\nIn Loho v. Mukasey, 531 F.3d 1016, 1018–19\n(9th Cir. 2008), the Ninth Circuit addressed\nthe situation in which an asylum applicant has\nfound safety in the United States and then\nreturns to the country claimed of persecution\nbefore eventually finding asylum in the\nUnited States. The Ninth Circuit held that the\napplicant’s voluntary return to the country of\nclaimed persecution may be considered in\nassessing both credibility and whether the\nrespondent has a well-founded fear of\npersecution in that country. Here, while the\nrespondent himself has not returned to China,\nhis wife and daughter did. Indeed they did so\nshortly after arriving in the United States, and\nthe respondent confirmed that they did so\nbecause the schooling is cheaper for his\ndaughter in China, as well as because his\nfather-in-law is elderly and needed to be cared\nfor. The respondent also told the Asylum\nOfficer that the “real story” about whey [sic]\nhis family returned was that his wife had a job\nand he did not, and that is why he stayed here.\nThis is consistent with respondent’s testimony\nbefore the Court that he did not have a job at\nthe time he came to the United States.\nFurthermore, I note that the respondent’s\nclaim of persecution is founded on the alleged\nforced abortion inflicted upon his wife. That\nis the central element of his claim. The\nrespondent claims that he himself was\npersecuted through his resistance to that\nabortion. Nevertheless, the fact remains that\nthe fundamental thrust of the respondent’s\n\n28 DAI V. BARR\n\n claim is that his wife was forced to have an\n abortion. In this regard, the respondent’s wife\n therefore clearly has an equal, or stronger,\n claim to asylum than the respondent himself,\n assuming the facts which he claims are true.\n The respondent was asked why his wife did\n not stay and apply for asylum and he replied\n that he did not know they could apply for\n asylum at the time they departed. The\n respondent was then asked why he stayed here\n after they returned; he said because he was in\n a bad mood and he wanted to get a job and a\n friend of mine is here.\n\n While Loho v. Mukasey applies to the\n applicant himself returning to China, I find\n that the reasoning of the Ninth Circuit in that\n case is fully applicable to the respondent’s\n situation in that his wife, who is the primary\n object of the persecution in China, freely\n chose to return to China. I do not find that the\n respondent’s explanations for her return to\n China while he remained here are adequate.\n The respondent has stated that he was in a bad\n mood and that he had found a job and had a\n friend here. The respondent has also indicated\n that his daughter’s education would be\n cheaper in China than here, and he has also\n indicated that his wife wanted to go to take\n care of her father. I do not find that these\n reasons are sufficiently substantial so as to\n outweigh the concerns raised by his wife and\n daughter’s free choice to return to China after\n\n DAI V. BARR 29\n\n having allegedly fled that country following\n his wife’s and his own persecution.\n\n In view of the for[e]going, I find that the\n respondent has failed to meet his burden of\n proving eligibility for asylum under Section\n 208(a) of the Act.\n\n(Emphasis added).\n\n To erase any doubts about Dai’s problematic testimony,\nthe following is an excerpt from it.\n\n MS. HANNETT TO MR. DAI\n\n Q. And isn’t it also true that the\n [asylum] officer asked why did\n they go back and you replied, so\n that my daughter can go to school\n and in the U.S., you have to pay a\n lot of money?\n\n A. Yes, that’s what I said.\n\n Q. Okay. And isn’t it also true that\n the officer asked you, can you tell\n me the real story about you and\n your family’s travel to the U.S.,\n and you replied I wanted a good\n environment for my child. My\n wife had a job and I didn’t, and\n that is why I stayed here. My wife\n and child go home first.\n\n30 DAI V. BARR\n\n A. I believe I said that.\n\n * \n\n Q. So, once you got to the United\n States, why didn’t your wife apply\n for asylum?\n\n A. My wife just returned to China.\n\n Q. Right, and my question is why\n didn’t she stay here and apply for\n asylum?\n\n A. At that time, we didn’t know the\n apply, we didn’t know that we can\n apply for asylum.\n\n Q. Well, if you didn’t know that you\n could apply for asylum, why did\n you stay here after they returned?\n\n A. Because at that time, I was in a\n bad mood and I couldn’t get a job,\n so I want to stay here for a bit\n longer and another friend of mine\n is also here.\n\n The asylum officer’s interview notes discussed by the IJ\n(and found to be consistent with Dai’s testimony before the\nIJ) read as follows:\n\n Earlier you said your wife has only traveled to\n Australia, Taiwan and HK. You also said that\n\n DAI V. BARR 31\n\nyou traveled to the US alone. Government\nrecords indicate that your wife traveled with\nyou to the United States. Can you explain?\n\n [long pause] the reason is I’m afraid to\n say that my wife came here, then why\n did she go back.\n\nYour wife went back? Yes\n\nWhen did she go back to China? February\n\nWhy did she go back? Because my child\n go to school\n\nEarlier you said you applied for your visa\nalone. Our records indicate that your child\nalso obtained a visa to the US with you. Can\nyou explain?\n\n [long pause]\n\nDaughter came with wife and you in January?\n Yes\n\nCan you explain? I’m afraid\n\nPlease tell me what you are afraid of. That is\nwhat your interview today is for. To\nunderstand your fears?\n\n I’m afraid you ask why my wife and\n daughter go back\n\n32 DAI V. BARR\n\n Why did they go back?\n\n So that my daughter can go to school\n and in the US you have to pay a lot of\n money.\n\n Can you tell me the real story about you and\n your family’s travel to the US?\n\n I wanted a good environment for my\n child. My wife had a job and I didn’t\n and that is why I stayed here. My\n wife and child go home first.\n\n(bracketed notations in original).\n\n V\n\n The Role of an Asylum Officer\n\n The majority’s opinion perpetuates another acute error\nour Circuit has made in its effort to control the DHS’s\nadministrative process. In footnote 2, the majority say that if\nDai concealed relevant information “it was only from the\nasylum officer.” Only from the asylum officer? So Dai’s\nadmitted concealment under oath of germane information\nduring a critical part of the evaluation process is of no\nmoment?\n\n The majority’s misunderstanding of the role of an asylum\nofficer represents a sub silentio application of another faulty\nproposition on the books in our circuit: Singh v. Gonzales,\n403 F.3d 1081 (9th Cir. 2005).\n\n DAI V. BARR 33\n\n Certain features of an asylum interview make\n it a potentially unreliable point of comparison\n to a petitioner’s testimony for purposes of a\n credibility determination. Barahona-Gomez v.\n Reno, 236 F.3d 1115 (9th Cir. 2001),\n explained the significant procedural\n distinctions between the initial quasi-\n prosecutorial “informal conferences\n conducted by asylum officers” after the filing\n of an asylum application, and the “quasi-\n judicial functions” exercised by IJs . . . .\n\nId. at 1087 (emphasis added).\n\n First of all, we may not have in this case a verbatim\ntranscript of Dai’s testimony, but we have the asylum\nofficer’s notes, which the IJ explicitly found to be accurate.\nMoreover, when appropriately confronted under oath with the\nnotes, Dai admitted they correctly captured what he said.\nUnder these circumstances, any concern that the asylum\ninterview might be a “potentially unreliable point of\ncomparison” to Dai’s testimony is irrelevant. The record\n(thanks to Dai himself) eliminates any potential for\nunreliability.\n\n Second, the pronouncement in Singh v. Gonzales that an\nasylum officer’s interview in an affirmative asylum case is\n“quasi-prosecutorial” in nature is flat wrong and reveals our\nfundamental misunderstanding of the process.7 An asylum\n\n\n\n 7\n An affirmative asylum case differs from a defensive asylum case\ninvolving someone already in removal proceedings. See Obtaining\nAsylum in the United States, DEP’T OF HOMELAND SEC.,\n\n34 DAI V. BARR\n\nofficer in an affirmative asylum case does not “prosecute”\nanyone during the exercise of his responsibilities, and the\nprocess is not “quasi-prosecutorial” in nature. In fact, unlike\na prosecutor, an asylum officer has the primary authority and\ndiscretion to grant asylum to an applicant should the applicant\npresent a convincing case. The asylum officer’s role is\nessentially judicial, not prosecutorial. We miss the mark here\nbecause we see only those cases where an affirmative asylum\napplicant did not present a sufficiently credible persuasive\ncase to an asylum officer to prevail, and we mistakenly\nconclude from that unrepresentative sample that asylum\nofficers tend to decide against such applicants.\n\n The true facts emerge from DHS’s June 20, 2016 report\nto Congress, Affirmative Asylum Application Statistics and\nDecisions Annual Report, covering “FY 2015 adjudications\nof affirmative asylum applications by USCIS [U.S.\nCitizenship & Immigration Services] asylum officers for the\nstated period.”8 By way of background, the Report points out\nthat asylum officers have a central determinative role in the\nprocess. Asylum determinations “are made by an asylum\nofficer after an applicant files an affirmative asylum\napplication, is interviewed, and clears required security and\nbackground checks.” Id. at 2.\n\n\n\nhttps://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining\n-asylum-united-states (last updated Oct. 19, 2015).\n 8\n 2016 DHS Congressional Appropriations Reports,\nDEP’T OF HOMELAND SEC., https://www.dhs.gov/publication/2016-dhs-\ncongressional-appropriations-reports (last published Feb. 12, 2018)\n(follow “United States Citizenship and Immigration Services (USCIS) -\nAffirmative Asylum Application Statistics & Decisions FY16 Report”\nhyperlink).\n\n DAI V. BARR 35\n\n The Report contains statistics about the activity of asylum\nofficers. According to the FY2015 statistics, asylum officers\ncompleted 40,062 affirmative asylum cases. They approved\n15,999 applications for an approval rate of 47% for\ninterviewed cases. Id. at 3.\n\n USCIS has a Policy Manual. Chapter 1 of Volume 1\nestablishes its “Guiding Principles.”9 A “Core Principal”\nreads as follows:\n\n The performance of agency duties inevitably\n means that some customers will be\n disappointed if their cases are denied. Good\n customer service means that everyone USCIS\n affects will be treated with dignity and\n courtesy regardless of the outcome of the\n decision.\n\n * \n\n USCIS will approach each case objectively\n and adjudicate each case in a thorough and\n fair manner. USCIS will carefully administer\n every aspect of its immigration mission so\n that its customers can hold in high regard the\n privileges and advantages of U.S.\n immigration.\n\nId.\n\n\n\n 9\n Policy Manual, U.S. CITIZENSHIP & IMMIGRATION SERVS.,\nhttps://www.uscis.gov/policymanual/HTML/PolicyManual-Volume1-\nPartA-Chapter1.html (Aug. 23, 2017).\n\n36 DAI V. BARR\n\n Finally, we look at the training given to asylum officers\nin connection with their interviews of affirmative asylum\napplicants. In USCIS’s Adjudicator’s Field Manual, we find\nin Appendix 15-2, “Non-Adversarial Interview Techniques,”\nthe following guidance.10\n\n I. OVERVIEW\n\n An immigration officer will conduct an\n interview for each applicant, petitioner or\n beneficiary where required by law or\n regulation, or if it is determined that such\n interviewed [sic] is appropriate. The interview\n will be conducted in a non-adversarial\n manner, separate and apart from the general\n public. The officer must always keep in mind\n his or her responsibility to uphold the integrity\n of the adjudication process. As representatives\n of the United States Government, officers\n must conduct the interview in a professional\n manner.\n\n * \n\n Due to the potential consequences of incorrect\n determinations, it is incumbent upon officers\n\n\n\n 10\n Adjudicator’s Field Manual - Redacted Public Version,\nU.S. CITIZENSHIP & IMMIGRATION SERVS.,\nhttps://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1.html\n(follow “Appendices” hyperlink; then follow “15-2 Non-Adversarial\nInterview Techniques” hyperlink) (last visited Feb. 15, 2018) (emphasis\nadded).\n\n DAI V. BARR 37\n\nto conduct organized, focused, and well-\nplanned, non-adversarial interviews . . . .\n\n * \n\nIII. NON-ADVERSARIAL NATURE OF\nTHE INTERVIEW\n\nA. Concept of the Non-adversarial\nInterview\n\nA non-adversarial proceeding is one in which\nthe parties are not in opposition to each other.\nThis is in contrast to adversarial proceedings,\nsuch as civil and criminal court proceedings,\nwhere two sides oppose each other by\nadvocating their mutually exclusive positions\nbefore a neutral arbiter until one side prevails\nand the other side loses. A removal\nproceeding before an immigration judge is an\nexample of an adversarial proceeding, where\nthe Service trial attorney is seeking to remove\na person from the United States, while the\nalien is seeking to remain.\n\nThe interview is part of a non-adversarial\nproceeding. The principal intent of the Service\nis not to oppose the interviewee’s goal of\nobtaining a benefit, but to determine whether\nhe or she qualifies for such benefit. If the\ninterviewee qualifies for the benefit, it is in\nthe Service’s interest to accommodate that\ngoal.\n\n38 DAI V. BARR\n\n * *\n\n B. Points to Keep in Mind When\n Conducting a Non-adversarial Interview\n\n The officer’s role in the non-adversarial\n interview is to ask questions formulated to\n elicit and clarify the information needed to\n make a determination on the petitioner or\n applicant’s request. This questioning must be\n done in a professional manner that is non-\n threatening and non-accusatory.\n\n 1. The officer must:\n\n a. Treat the interviewee with respect. Even\n if someone is not eligible for the benefit\n sought based on the facts of the claim, the\n officer must treat him or her with respect. The\n officer may hear similar claims from many\n interviewees, but must not show impatience\n towards any individual. Even the most non-\n confrontational officer may begin to feel\n annoyance or frustration if he or she believes\n that the interviewee is lying; however, it is\n important that the officer keep these emotions\n from being expressed during the interview.\n\n b. Be non-judgmental and non-moralistic.\n Interviewees may have reacted to situations\n differently than the officer might have\n reacted. The interviewee may have left family\n members behind to fend for themselves, or\n may be a member of a group or organization\n\n DAI V. BARR 39\n\nfor which the officer has little respect.\nAlthough officers may feel personally\noffended by some interviewee’s actions or\nbeliefs, officers must set their personal\nfeelings aside in their work, and avoid passing\nmoral judgments in order to make neutral\ndeterminations.\n\n c. Create an atmosphere in which the\ninterviewee can freely express his or her\nclaim. The officer must make an attempt to\nput the interviewee at ease at the beginning of\nthe interview and continue to do so\nthroughout the interview. If the interviewee is\na survivor of severe trauma (such as a battered\nspouse), he or she may feel especially\nthreatened during the interview. As it is not\nalways easy to determine who is a survivor,\nofficers should be sensitive to the fact that\nevery interviewee is potentially a survivor of\ntrauma.\n\n Treating the interviewee with respect and\nbeing non-judgmental and non-moralistic can\nhelp put him or her at ease. There are a\nnumber of other ways an officer can help put\nan interviewee at ease, such as:\n\n • Greet him or her (and others)\n pleasantly;\n\n • Introduce himself or herself by\n name and explain the officer’s role;\n\n40 DAI V. BARR\n\n • Explain the process of the\n interview to the interviewee so he or\n she will know what to expect during\n the interview;\n\n • Avoid speech that appears to be\n evaluative or that indicates that the\n officer thinks he or she knows the\n answer to the question;\n\n • Be patient with the interviewee;\n and\n\n • Keep language as simple as\n possible.\n\n d. Treat each interviewee as an individual.\n Although many claims may be similar, each\n claim must be treated on a case-by-case basis\n and each interviewee must be treated as an\n individual. Officers must be open to each\n interviewee as a potential approval.\n\n e. Set aside personal biases. Everyone has\n individual preferences, biases, and prejudices\n formed during life experiences that may cause\n them to view others either positively or\n negatively. Officers should be aware of their\n personal biases and recognize that they can\n potentially interfere with the interview\n process. Officers must strive to prevent such\n biases from interfering with their ability to\n conduct interviews in a non-adversarial and\n neutral manner.\n\n DAI V. BARR 41\n\nf. Probe into all material elements of the\ninterviewee’s claim. The officer must elicit all\nrelevant and useful information bearing on the\napplicant or beneficiary’s eligibility. The\nofficer must ask questions to expand upon and\nclarify the interviewee’s statements and\ninformation contained on the form. The\nresponse to one question may lead to\nadditional questions about a particular topic or\nevent that is material to the claim.\n\ng. Provide the interviewee an opportunity to\nclarify inconsistencies. The officer must\nprovide the interviewee with an opportunity\nduring the interview to explain any\ndiscrepancy or inconsistency that is material\nto the determination of eligibility. He or she\nmay have a legitimate reason for having\nrelated testimony that outwardly appears to\ncontain an inconsistency, or there may have\nbeen a misunderstanding between the officer\nand the interviewee. Similarly, there may be\na legitimate explanation for a discrepancy or\ninconsistency between information on the\nform and the interviewee’s testimony.\n\n On the other hand, the interviewee may be\nfabricating a claim. If the officer believes that\nan interviewee is fabricating a claim, he or she\nmust be able to clearly articulate why he or\nshe believes that the interviewee is not\ncredible.\n\n42 DAI V. BARR\n\n h. Maintain a neutral tone throughout the\n interview. Interviews can be frustrating at\n times for the officer. The interviewee may be\n long-winded, may discuss issues that are not\n relevant to the claim, may be confused by the\n questioning, may appear to be or may be\n fabricating a claim, etc. It is important that the\n officer maintain a neutral tone even when\n frustrated.\n\n 2. The officer must not:\n\n • Argue in opposition to the applicant or\n petitioner’s claim (if the officer engages in\n argument, he or she has lost control of the\n interview);\n\n • Question the applicant in a hostile or\n abusive manner;\n\n • Take sides in the applicant or petitioner’s\n claim;\n\n • Attempt to be overly friendly with the\n interviewee; or\n\n • Allow personal biases to influence him or\n her during the interview, either in favor of or\n against the interviewee.\n\n I hope that by exposing the particulars of the affirmative\napplication process we will correct our understanding of the\napplicant interview process, and that we will drop our\nuninformed characterization of it as “quasi-prosecutorial.”\n\n DAI V. BARR 43\n\nWhile under oath, Dai intentionally concealed material\ninformation from the asylum officer during a critical aspect\nof the process. To diminish the import of this potential\ncrime11 because the government official was “only” an\nasylum officer is a serious mistake.\n\n VI\n\n The BIA’s Decision\n\n Dai unsuccessfully appealed the IJ’s decision denying his\napplication for asylum, withholding of removal, and\nprotection under the Convention Against Torture. The BIA’s\ndecision follows.\n\n We review for clear error the findings of fact,\n including determinations of credibility, made\n by the Immigration Judge. We review de\n novo all other issues, including whether the\n parties have met the relevant burden of proof,\n and issues of discretion. The respondent filed\n his application for asylum after May 11, 2005,\n and thus review is governed by the REAL ID\n Act of 2005.\n\n We adopt and affirm the Immigration Judge’s\n decision in this case. The Immigration Judge\n correctly denied the respondent’s applications\n for failure to meet his burden of proof. The\n record reflects that the respondent failed to\n\n\n 11\n 18 U.S.C. § 1001 makes it a crime knowingly and willfully to make\na material false statement in any matter within the jurisdiction of the\nexecutive branch of Government.\n\n44 DAI V. BARR\n\n disclose to both the [DHS] asylum officer and\n the Immigration Judge that his wife and\n daughter had traveled with him to the United\n States and voluntarily returned to China\n shortly after. The respondent further\n conceded that he was not forthcoming about\n this information because he believed that the\n true reasons for their return—that his wife\n had a job in China and needed to care for her\n elderly father, and that their daughter could\n attend school in China for less money than in\n the United States—would be perceived as\n inconsistent with his claims of past and feared\n future persecution.\n\n The Immigration Judge correctly decided that\n the voluntary return of the respondent’s wife\n and daughter to China, after allegedly fleeing\n following the persecution of the respondent\n and his wife, prevents the respondent from\n meeting his burden of proving his asylum\n claim. Contrary to the respondent’s argument\n on appeal, the Immigration Judge need not\n have made an explicit adverse credibility\n finding to nevertheless determine that the\n respondent did not meet his burden of proving\n his asylum claim. The respondent’s family\n voluntarily returning and his not being\n truthful about it is detrimental to his claim\n and is significant to his burden of proof.\n\n(Emphasis added) (footnote and citations omitted).\n\n DAI V. BARR 45\n\n VII\n\n The IJ Becomes a Potted Plant\n\n My colleagues’ opinion boils down to this faulty\nproposition: Simply because the IJ did not say “I find Dai not\ncredible” but opted instead to expose the glaring factual\ndeficiencies in Dai’s presentation and to explain in specific\ndetail and at length why Dai had not persuasively carried his\nburden of proving his case, we must selectively embrace as\npersuasive Dai’s problematic presentation regarding the core\nof his claim.12 I invite the reader to review once again the IJ’s\ndecision and to decide on the merits whether Dai’s case is\npersuasive. It is anything but.\n\n My colleagues expunge from the record the blatant flaws\nin Dai’s performance involving demeanor, candor, and\nresponsiveness, claiming that “taking into account the record\nas a whole, nothing undermines the persuasiveness of Dai’s\ncredible testimony. . . .” Nothing? They disregard\ninaccuracies, inconsistencies, and implausibilities in his story,\nand his barefaced attempt to cover up the truth about his\nwife’s and daughter’s travels and situation. They even sweep\naside Dai’s admission to the asylum officer that the “real\nstory” is that (1) he wanted a good environment for his child,\n(2) his wife left him behind because she had a job in China\nand he did not, and (3) he was in a “bad mood,” couldn’t get\na job, and wanted to stay here “for a bit longer.” In their\nopinion, there is not a single word regarding the factors cited\nby the IJ to explain his observations, findings, and decision,\nincluding the fact that Dai’s wife, allegedly the initial subject\n\n 12\n And if an IJ does make an adverse credibility finding, we have\nmanufactured a multitude of ways to disregard it.\n\n46 DAI V. BARR\n\nof persecution in China, made a free choice to return. The\neffect of the presumption is to wipe the record clean of\neverything identified by the IJ and the BIA as problematic.\n\n The irony in my colleagues’ analysis is that once they\nproclaim that Dai’s testimony is credible, they pick and\nchoose only those parts of his favorable testimony that\nsupport his case—not the parts that undercut it. If we must\naccept Dai’s presentation as credible, then why not also his\n“real story” when confronted with the facts that he came to\nthe United States because he wanted a good environment for\nhis daughter, and that he did not return to China with his wife\nbecause she had a job and he did not? What becomes of his\nattempted cover up of the travels of his wife and daughter?\n\n Furthermore, my colleagues’ treatment of the IJ’s opinion\nis irreconcilable with the BIA’s wholesale acceptance of it.\nIn words as clear as the English language can be, the BIA\nsaid, “We adopt and affirm the Immigration Judge’s\ndecision.” To compound their error, the majority then seizes\nupon and pick apart the BIA’s summary explanation of why\nit concluded on de novo review that the IJ’s decision was\ncorrect. What the BIA did say was that Dai’s failure to be\ntruthful about his family’s voluntary return to China was\n“detrimental to his claim” and “significant to his burden of\nproof.”\n\n VIII\n\n Analysis\n\n And so we come at last to the statutory requirement of\npersuasiveness, an issue uniquely suited to be determined by\nthe “trier of fact,” as the Act and 8 U.S.C. § 1158(b)(1)(B)(ii)\n\n DAI V. BARR 47\n\ndictate. The majority opinion freights this inquiry with an\nincomplete record. The opinion sweeps demeanor, candor,\nand plausibility considerations—as well as the IJ’s extensive\nfindings of fact—off the board. Once again, the opinion\nignores Huang, a post-Act case.\n\n The need for deference is particularly strong\n in the context of demeanor assessments. Such\n determinations will often be based on non-\n verbal cues, and “[f]ew, if any, of these\n ephemeral indicia of credibility can be\n conveyed by a paper record of the\n proceedings and it would be extraordinary for\n a reviewing court to substitute its second-hand\n impression of the petitioner’s demeanor,\n candor, or responsiveness for that of the IJ.”\n\n744 F.3d at 1153 (alteration in original) (quoting Jibril,\n423 F.3d at 1137).\n\n Here, the IJ determined that Dai’s testimony was not\npersuasive based on demeanor, non-verbal cues, and other\ngermane material factors that went to the heart of his case.\nThe IJ explained his decision in exquisite detail, and our\napproach and analysis should be simple. In order to reverse\nthe BIA’s conclusion that Dai did not carry his burden of\nproof, “we must determine ‘that the evidence not only\nsupports [a contrary] conclusion, but compels it—and also\ncompels the further conclusion’ that the petitioner meets the\nrequisite standard for obtaining relief.” Garcia-Milian v.\nHolder, 755 F.3d 1026, 1031 (9th Cir. 2014) (alteration in\noriginal) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481\nn.1 (1992)). If anything, this record compels the conclusion\nthat the IJ and the BIA were correct, not mistaken. Are my\n\n48 DAI V. BARR\n\ncolleagues seriously going to hold that an IJ cannot take\nuniversally accepted demeanor, candor, responsiveness,\nplausibility, and forthrightness factors into consideration in\nassessing persuasiveness, as the IJ did here? And that this\ndetailed record, which is full of Dai’s admissions of an\nattempted coverup, compels the conclusion that Dai was so\npersuasive as to carry his burden? Dai accurately understood\nthe damaging implications of his wife’s return to China. So\ndid the IJ and the BIA. As the BIA stated, the truth is\n“inconsistent with his claims of past and feared future\npersecution.”\n\n IX\n\n The More Things Change, The More They Stay The\n Same\n\n In Elias-Zacarias, 921 F.2d 844 (9th Cir. 1990), rev’d,\n502 U.S. 478 (1992), our court substituted the panel’s\ninterpretation of the evidence for the BIA’s. The Supreme\nCourt reversed our decision, calling the first of the panel’s\ntwo-part reasoning “untrue,” and the second “irrelevant.”\n502 U.S. at 481. The Court warned us that we could not\nreverse the BIA unless the asylum applicant demonstrates that\n“the evidence he presented was so compelling that no\nreasonable factfinder could fail to find the requisite fear of\npersecution.” Id. at 483–84 (emphasis added). In our case,\nwe again fail to follow this instruction.\n\n In INS v. Orlando Ventura, 537 U.S. 12, 13 (2002) (per\ncuriam), the Court noted that both sides, petitioner and\nrespondent, had asked us to remand the case to the BIA so\nthat it might determine in the first instance whether changed\nconditions in Guatemala eliminated any realistic threat of\n\n DAI V. BARR 49\n\npersecution of the petitioner. Our panel did not remand the\ncase, evaluating instead the government’s claim of changed\nconditions by itself and deciding the issue in favor of the\npetitioner. Id. at 13–14. The Supreme Court summarily\nreversed our decision, saying “[T]he Court of Appeals\ncommitted clear error here. It seriously disregarded the\nagency’s legally mandated role.” Id. at 17.\n\n A mere two years after Ventura’s per curiam opinion, we\nknowingly made the same mistake in Thomas v. Gonzales,\n409 F.3d 1177 (9th Cir. 2005) (en banc), vacated, 547 U.S.\n183 (2006). We disregarded four dissenters to that flawed\nopinion, who argued in vain that our court’s decision was\nirreconcilable with Ventura. In short order, the Supreme\nCourt vacated our en banc opinion, saying that our “error is\nobvious in light of Ventura, itself a summary reversal” and\nthat the same remedy was once again appropriate. 547 U.S.\nat 185.\n\n With all respect, the majority opinion follows in our\ntradition of seizing authority that does not belong to us,\ndisregarding DHS’s statutorily mandated role. Even the\nREAL ID Act has failed to correct our errors.\n\n Thus, I dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370363/", "author_raw": "TROTT, Circuit Judge, dissenting"}]}	SIDNEY R THOMAS	STEPHEN S TROTT	MARY H MURGUIA	1	{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593110/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,934		Sanford Wadler v. Bio-Rad Laboratories, Inc.	2019-02-26	17-16193	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Susan P. Graber and Mark J. Bennett, Circuit Judges, and Leslie E. Kobayashi, * District Judge.", "parties": "", "opinions": [{"author": "BENNETT, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n SANFORD S. WADLER, No. 17-16193\n Plaintiff-Appellee,\n D.C. No.\n v. 3:15-cv-02356-\n JCS\n BIO-RAD LABORATORIES, INC., a\n Delaware Corporation; NORMAN\n SCHWARTZ, OPINION\n Defendants-Appellants.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Joseph C. Spero, Magistrate Judge, Presiding\n\n Argued and Submitted November 14, 2018\n San Francisco, California\n\n Filed February 26, 2019\n\n Before: Susan P. Graber and Mark J. Bennett, Circuit\n Judges, and Leslie E. Kobayashi, * District Judge.\n\n Opinion by Judge Bennett\n\n\n \n The Honorable Leslie E. Kobayashi, United States District Judge\nfor the District of Hawaii, sitting by designation.\n\f2 WADLER V. BIO-RAD LABORATORIES\n\n SUMMARY \n\n\n Labor Law\n\n The panel vacated in part the district court’s judgment\nafter a jury trial, affirmed in part, and remanded in a\nwhistleblower retaliation suit.\n\n The jury found that Bio-Rad Laboratories, Inc., and its\nCEO violated the Sarbanes-Oxley Act, the Dodd-Frank Act,\nand California public policy by terminating the employment\nof Bio-Rad’s former general counsel, Sanford Wadler, in\nretaliation for his internal report that he believed the\ncompany had engaged in violations of the Foreign Corrupt\nPractices Act in China.\n\n Vacating the SOX verdict, the panel held that the district\ncourt erred in instructing the jury that statutory provisions of\nthe FCPA constitute rules or regulations of the SEC for\npurposes of whether Wadler engaged in protected activity\nunder SOX § 806. Because a properly instructed jury could\nreturn a SOX verdict in favor of Wadler, the panel remanded\nfor the district court to determine whether a new trial was\nwarranted.\n\n With respect to Wadler’s California public policy claim,\nthe panel concluded that the district court’s SOX\ninstructional error was harmless and therefore affirmed the\nverdict and corresponding damages as to that claim.\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f WADLER V. BIO-RAD LABORATORIES 3\n\n Addressing additional issues in a contemporaneously-\nfiled memorandum disposition, the panel also vacated the\ndistrict court’s Dodd-Frank verdict and remanded.\n\n\n COUNSEL\n\nKathleen M. Sullivan (argued) and William B. Adams,\nQuinn Emanuel Urquhart & Sullivan LLP, New York, New\nYork; Karin Kramer, Andrew P. March, and John M. Potter,\nQuinn Emanuel Urquhart & Sullivan, LLP, San Francisco,\nCalifornia; for Defendants-Appellants.\n\nMichael John von Loewenfeldt (argued), Kenneth P. Nabity,\nand James M. Wagstaffe, Kerr & Wagstffe LLP, San\nFrancisco, California, for Plaintiff-Appellee.\n\n\n OPINION\n\nBENNETT, Circuit Judge:\n\n In this whistleblower retaliation case, Bio-Rad\nLaboratories, Inc. (“Bio-Rad” or “the Company”) and its\nCEO, Norman Schwartz, appeal an $11 million jury verdict\nin favor of Bio-Rad’s former general counsel, Sanford\nWadler. 1 The jury found that Defendants violated the\nSarbanes-Oxley Act (“SOX”), the Dodd-Frank Act, and\nCalifornia public policy by terminating Wadler’s\nemployment in retaliation for his internal report that he\nbelieved the Company had engaged in serious and prolonged\n\n\n 1\n We refer to the Defendants collectively as “Bio-Rad” except when\nnecessary to distinguish between them.\n\f4 WADLER V. BIO-RAD LABORATORIES\n\nviolations of the Foreign Corrupt Practices Act (“FCPA”) in\nChina.\n\n On appeal, Defendants argue that the district court erred\nby instructing the jury that statutory provisions of the FCPA\nconstitute “rule[s] or regulation[s] of the Securities and\nExchange Commission” (“SEC”) for purposes of whether\nWadler engaged in “protected activity” under SOX § 806,\n18 U.S.C. § 1514A(a). We agree. We reject, however, Bio-\nRad’s argument that no properly instructed jury could return\na SOX verdict in favor of Wadler. Accordingly, we vacate\nthe SOX verdict and remand for the district court to\ndetermine whether a new trial is warranted.\n\n With respect to Wadler’s California public policy claim,\nby contrast, we conclude that the district court’s SOX\ninstructional error was harmless and therefore we affirm the\nverdict and corresponding damages as to that claim.\n\n In a memorandum disposition filed this date, we\nconclude that the instructional error was not harmless as to\nthe SOX claim. We also reject Bio-Rad’s challenges to the\ndistrict court’s evidentiary rulings and the sufficiency of the\nevidence. Finally, we vacate with instructions to enter\njudgment in favor of Bio-Rad as to the Dodd-Frank claim in\nlight of Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767,\n778 (2018), which held that Dodd-Frank does not apply to\npurely internal reports. We therefore also vacate the portion\nof damages attributable solely to the Dodd-Frank verdict,\napproximately $2.96 million plus interest.\n\n Accordingly, we vacate in part, affirm in part, and\nremand for consideration of whether a new trial is warranted\nas to the SOX claim.\n\f WADLER V. BIO-RAD LABORATORIES 5\n\n I.\n\n We must view the evidence at trial in the light most\nfavorable to the verdict. Shafer v. Cty. of Santa Barbara,\n868 F.3d 1110, 1115 (9th Cir. 2017), cert. denied, 138 S. Ct.\n2582 (2018). Because the jury returned a verdict in favor of\nWadler on all claims, we review the pertinent facts adduced\nat trial in the light most favorable to him.\n\n A.\n\n The trial centered on a memorandum that Wadler\ndelivered to the Audit Committee of Bio-Rad’s Board of\nDirectors in February 2013 (the “Audit Committee Memo”\nor “Memo”) and Schwartz’s subsequent decision to\nterminate Wadler’s employment in June 2013. Wadler\nstated in the Memo that he believed Bio-Rad employees in\nChina had violated the FCPA’s bribery and books-and-\nrecords provisions, and that senior management was likely\ncomplicit.\n\n The factual basis for the Memo, and Wadler’s reasons\nfor writing it, can be traced back to 2009. In that year, Bio-\nRad’s internal audit team discovered that Bio-Rad salesmen\nin Vietnam and Thailand had engaged in potential FCPA\nviolations. At Wadler’s recommendation, Bio-Rad hired\nFCPA attorney Patrick Norton of Steptoe & Johnson to\ninvestigate.\n\n Norton reported his findings to Bio-Rad’s Board of\nDirectors in September 2011. Specifically, Norton reported\nthat he had found evidence that Bio-Rad employees were\nviolating the FCPA’s bribery and books-and-records\nprovisions in Vietnam, Thailand, and Russia. As for China,\nNorton reported several “red flags,” including “[v]ery high,\nunexplained commissions” and a “history of widespread\n\f6 WADLER V. BIO-RAD LABORATORIES\n\ncorruption” in the country’s medical products market.\nNorton reported, however, that “no evidence of improper\npayments” had been found to date in China.\n\n In June 2012, Wadler and Schwartz received the results\nof a sales documentation audit that had been initiated at the\nrequest of Bio-Rad’s licensor, Life Technologies, Inc. (“Life\nTech”). The audit, which covered the years 2006 to 2010,\nrevealed that Bio-Rad owed Life Tech around $30 million in\nroyalty obligations due to Bio-Rad’s missing documentation\nof end-user prices for products primarily in the Chinese\nmarket.\n\n Wadler and John Cassingham, an in-house patent lawyer\nwho reported to Wadler, repeatedly attempted to obtain the\nmissing sales documents from China. In November 2012,\nCassingham finally succeeded in obtaining a complete set of\ndocuments for a single transaction and sent those documents\nto Wadler. Wadler testified that Cassingham thought the\ndocuments showed bribery. Wadler further testified that he\nsubsequently told Schwartz about the potential bribery, but\nSchwartz responded that he was not going to do anything\nabout it.\n\n Wadler’s concerns increased as he and Cassingham\nspoke to other employees. In December 2012, for example,\na senior Bio-Rad manager in China told Wadler that he had\nnever visited one of Bio-Rad’s main distributors to look for\ndocuments, despite the distributor’s failure to comply with\nBio-Rad’s documentation requests. A different Bio-Rad\nemployee in China later told Cassingham (who in turn told\nWadler) about a widespread “under the covers” scheme in\nwhich cover sheets on import/export documents were used\nto show the official number of products while the shipments\nthemselves were padded with free extra products. Wadler\nlater obtained around 160 sets of Chinese sales documents,\n\f WADLER V. BIO-RAD LABORATORIES 7\n\nthirty percent of which showed the product-padding pattern\nthat fit the description of the “under the covers” scheme.\n\n In January 2013, Wadler discovered that Bio-Rad\nemployees in China had entered into unauthorized contracts\nwith distributors. In the course of investigating those\ncontracts, Wadler learned that they were not accurate\ntranslations of approved English-language distributor\ncontracts, but had instead been translated from an earlier\ntemplate that did not include FCPA compliance provisions.\nWadler’s junior attorneys also informed him that the\ncontracts provided for unauthorized “incentives payable in\nfree product – between 1–3% of sales if [salesmen] achieved\ncertain targets,” with a “financial impact of . . .\napproximately one million dollars.”\n\n B.\n\n On February 8, 2013, Wadler delivered the Memo to the\nAudit Committee, reporting his belief that there were\n“serious and prolonged violations of the FCPA in Bio-Rad’s\nbusiness in China.” Wadler listed several sources of\nconcern: (1) a free-product scheme that “suggest[ed] several\npossibilities for bribery”; (2) Bio-Rad’s inability to obtain\ndocuments for the Life Tech audit, which “could itself be\nconsidered a substantive and clear violation of [the FCPA’s]\nbooks and records requirements”; and (3) the Chinese\ndistributor contracts without FCPA compliance language.\nWadler concluded that “these practices [we]re endemic and\nthat high levels of management within the company had to\nknow they were happening,” which, he continued, was why\nhe had not yet discussed his concerns with senior\nmanagement (including Schwartz).\n\n Wadler recommended that Bio-Rad “promptly conduct\nan in depth investigation into business practices in China”\n\f8 WADLER V. BIO-RAD LABORATORIES\n\nand that the Company report his suspicions to the\ngovernment and to the Company’s auditors. The Company’s\nduty to report was “especially true,” he wrote, because it had\n“meetings scheduled with the government agencies in late\nFebruary to discuss the ‘tone at the top’ in relationship to\npenalties for the violations in Vietnam, Russia, Thailand and\nBrazil.” Wadler opined that it “would deeply prejudice how\nthe government would view the company if we had\ndiscussions about ‘tone at the top’ knowing that there [were]\npotentially serious additional violations that were being\nwithheld.”\n\n C.\n\n In response to the Memo, the Audit Committee\nauthorized Wadler to hire Davis Polk & Wardwell to\ninvestigate his concerns. On February 20, 2013, the\nChairman of the Audit Committee told Schwartz about the\nMemo. Two days later Schwartz informed the head of Bio-\nRad’s human resources department that Wadler had “been\nacting a little bizarre lately” and that Schwartz might “want\nto put him on an administrative leave.” By March, Schwartz\nhad become “entirely frustrated” with Wadler but believed\nthat “he must stay in place until [an] FCPA settlement” with\nthe government was final.\n\n Davis Polk reported the findings of its investigation to\nBio-Rad’s Board of Directors on June 4, 2013. Davis Polk\nfound that there was “no evidence to date of any violation—\nor attempted violation—of the FCPA” in China. Schwartz\nfired Wadler three days later. Bio-Rad later paid the\ngovernment a total of $55 million to resolve its investigation\ninto FCPA issues in Vietnam, Thailand, and Russia.\nNothing was paid as a result of any FCPA issues in China.\n\f WADLER V. BIO-RAD LABORATORIES 9\n\n II.\n\n In May 2015, Wadler brought this action for\ncompensatory and punitive damages against the Company\nand Schwartz. As relevant here, Wadler alleged violations\nof SOX and Dodd-Frank as to both Defendants, and a\nviolation of California public policy under Tameny v.\nAtlantic Richfield Co., 610 P.2d 1330, 1336–37 (Cal. 1980)\n(the “Tameny” claim) against the Company only. The case\nproceeded to a jury trial in January 2017.\n\n At trial, Wadler set out to prove that Schwartz fired him\nin retaliation for reporting alleged FCPA violations to the\nAudit Committee, while Bio-Rad attempted to show that\nWadler was fired due to his poor performance and\ndysfunctional relationship with management. Bio-Rad also\ntried to show that Wadler wrote the Memo only because he\nwas concerned about his job security, and that it would have\nbeen unreasonable for a general counsel in Wadler’s position\nto believe that the Company had violated the FCPA in China.\n\n At the close of trial, the judge gave several jury\ninstructions concerning when an employee engages in\n“protected activity” for purposes of SOX, Tameny, and\nDodd-Frank. For each of the three claims, the instructions\nstated that Wadler had to prove he engaged in protected\nactivity under SOX, which in turn depended on whether he\ndisclosed conduct that he reasonably believed violated a\n“rule or regulation of the” SEC. The main instruction at\nissue in this appeal, Instruction 21, stated that, under “the\nrules and regulations of the [SEC] applicable to Bio-Rad,” it\nis unlawful to (1) bribe a foreign official; (2) fail to keep\naccurate and reasonably detailed books and records;\n\f10 WADLER V. BIO-RAD LABORATORIES\n\n(3) knowingly falsify books and records; and (4) knowingly\ncircumvent a system of internal accounting controls. 2\n\n The jury returned a verdict in favor of Wadler on all three\nclaims. As to all three claims in general, the jury awarded\nWadler $2.96 million in compensatory damages for past\neconomic loss against both Defendants. The district court\ndoubled that amount under Dodd-Frank’s doubling\nprovision, 15 U.S.C. § 78u-6(h)(1)(C)(ii), resulting in a total\naward of $5.92 million plus interest against Schwartz.\nBecause the jury also awarded Wadler $5 million in punitive\ndamages against the Company based on the Tameny claim,\nthe total award against the Company was $10.92 million plus\ninterest.\n\n Bio-Rad subsequently filed a renewed motion for\njudgment as a matter of law (“JMOL”) and a motion for new\ntrial. Bio-Rad argued, inter alia, that Wadler’s disclosure of\nalleged FCPA violations was not protected activity under\nSOX because provisions of the FCPA, a statute, do not\nconstitute SEC rules or regulations for purposes of SOX\n§ 806. The district court denied Bio-Rad’s motions. The\ncourt concluded that the FCPA is a “rule or regulation of the\nSEC” for purposes of SOX because “the FCPA is an\namendment to the Securities . . . Exchange Act of 1934 and\nis codified within it.” This appeal followed.\n\n III.\n\n We have jurisdiction under 28 U.S.C. § 1291 over the\nappeal of the denial of a motion for new trial and renewed\n 2\n For simplicity, throughout this opinion we refer to the books-and-\nrecords provisions listed in paragraphs two and three of Instruction 21,\nand the internal accounting controls provision in paragraph four of\nInstruction 21, collectively as the “books-and-records” provisions.\n\f WADLER V. BIO-RAD LABORATORIES 11\n\nmotion for JMOL, and the district court’s interlocutory\nrulings at trial. See Hall v. City of Los Angeles, 697 F.3d\n1059, 1070 (9th Cir. 2012). The district court had\njurisdiction under 28 U.S.C. §§ 1331 and 1367.\n\n We review de novo whether a jury instruction correctly\nstates the law. Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th\nCir. 2014). The denial of a motion for JMOL is also\nreviewed de novo, Castro v. Cty. of Los Angeles, 833 F.3d\n1060, 1066 (9th Cir. 2016), and the denial of a motion for\nnew trial is reviewed for abuse of discretion, Crowley v.\nEpicept Corp., 883 F.3d 739, 748 (9th Cir. 2018) (per\ncuriam). We review de novo questions of statutory\ninterpretation. California v. Iipay Nation of Santa Ysabel,\n898 F.3d 960, 964 (9th Cir. 2018).\n\n IV.\n\n A. The SOX Claim\n\n Section 806 of SOX prohibits publicly traded companies\nfrom retaliating against an employee who lawfully reports\n\n any conduct which the employee reasonably\n believes constitutes a violation of [18 U.S.C.]\n section 1341 [mail fraud], 1343 [wire fraud],\n 1344 [bank fraud], or 1348 [securities fraud],\n any rule or regulation of the Securities and\n Exchange Commission, or any provision of\n Federal law relating to fraud against\n shareholders . . . .\n\n18 U.S.C. § 1514A(a)(1). The question before us is whether\nthe district court erred by instructing the jury that, for\npurposes of § 806, rules or regulations of the SEC include\nthe FCPA’s books-and-records provisions, 15 U.S.C.\n\f12 WADLER V. BIO-RAD LABORATORIES\n\n§ 78m(b)(5), (2)(A), and anti-bribery provision, id. § 78dd-\n1(a). We conclude that the court erred. However, because a\nproperly instructed jury could return a verdict in Wadler’s\nfavor, we vacate the SOX verdict and remand for the district\ncourt to consider whether a new trial is appropriate in light\nof our decision to affirm the Tameny verdict.\n\n 1.\n\n As a threshold matter, we consider whether Bio-Rad’s\nclaim of instructional error is properly before us with respect\nto paragraphs two through four of Instruction 21 concerning\nbooks and records. Wadler argues that Bio-Rad invited error\nor waived the books-and-records part of its claim, in light of\nBio-Rad’s shifting positions in the district court. Bio-Rad\ncorrectly conceded in the district court, and continues to\nconcede on appeal, that one of the FCPA books-and-records\nprovisions in Instruction 21 is also an SEC regulation within\nthe scope of § 806. See 17 C.F.R. § 240.13b2-1 (“No person\nshall directly or indirectly, falsify or cause to be falsified,\nany book, record or account . . . .”). At times, however, Bio-\nRad appeared to abandon a challenge to all three books-and-\nrecords provisions listed in Instruction 21 by targeting only\nthe FCPA anti-bribery provision. Although Bio-Rad’s\nposition was not always clear, we conclude that its actions\ndid not rise to the level of invited error or waiver.\n\n As for invited error, Bio-Rad originally objected to the\njury instructions on the ground that reporting any FCPA\nviolation is not SOX-protected activity. Although Bio-Rad\nnarrowed its objection at one point to only the anti-bribery\nportion of the instructions, Bio-Rad expressly preserved its\noriginal objection at the final jury instructions conference.\nThe district court then stated that Bio-Rad’s position that a\nstatute is not a rule or regulation for purposes of § 806 was\n“very clear.” On this record, we cannot say that Bio-Rad\n\f WADLER V. BIO-RAD LABORATORIES 13\n\nwas responsible for any error in the jury instructions. See\nSovak v. Chugai Pharm. Co., 280 F.3d 1266, 1270 (9th Cir.),\namended by 289 F.3d 615 (9th Cir. 2002).\n\n Bio-Rad also raised its present claim in the JMOL\nbriefing such that it is not waived on appeal. Bio-Rad\nspecifically argued, in its JMOL motion, that the FCPA is\nnot a rule or regulation of the SEC because it is a statute.\nEven if Bio-Rad again limited the scope of that argument to\nthe anti-bribery context in its renewed JMOL motion, the\ndistrict court addressed the merits of the basic issue before\nus now: whether any FCPA provision can be a rule or\nregulation of the SEC for purposes of § 806. Accordingly,\nthat issue is properly before us. See True Health\nChiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 930\n(9th Cir. 2018), petition for cert. filed, ___ U.S.L.W. ___\n(U.S. Jan. 25, 2019) (No. 18-987); see also Tarabochia v.\nAdkins, 766 F.3d 1115, 1128 n.12 (9th Cir. 2014) (“[E]ven\nif a party fails to raise an issue in the district court, we\ngenerally will not deem the issue waived if the district court\nactually considered it.”).\n\n We therefore proceed to the merits of the issue raised on\nappeal: whether Instruction 21 erroneously listed the\nFCPA’s anti-bribery and books-and-records-provisions as\n“rules or regulations of the SEC” under SOX § 806.\n\n 2.\n\n In construing the provisions of a statute, “we begin with\nwell-settled canons of statutory interpretation.” Zazzali v.\nUnited States (In re DBSI, Inc.), 869 F.3d 1004, 1010 (9th\nCir. 2017). “A primary canon of statutory interpretation is\nthat the plain language of a statute should be enforced\naccording to its terms, in light of its context.” ASARCO, LLC\nv. Celanese Chem. Co., 792 F.3d 1203, 1210 (9th Cir. 2015).\n\f14 WADLER V. BIO-RAD LABORATORIES\n\nWe also presume that Congress acts intentionally when it\nuses particular wording in one part of a statute but omits it\nin another. Dep’t of Homeland Sec. v. MacLean, 135 S. Ct.\n913, 919 (2015). Thus, when a statute uses the phrase “law,\nrule, or regulation” in one section but uses only “law” in a\ndifferent section, the word “law” does not encompass\nadministrative rules or regulations. Id. at 919–20; Dep’t of\nTreasury, IRS v. Fed. Labor Relations Auth., 494 U.S. 922,\n931–32 (1990).\n\n Applying these principles here, we hold that § 806’s text\nis clear: an FCPA provision is not a “rule or regulation of the\n[SEC].” 18 U.S.C. § 1514A(a)(1). Although the words\n“rule” and “regulation” could perhaps encompass a statute\nwhen read in isolation, the more natural and plain reading of\nthese words together and in context is that they refer only to\nadministrative rules or regulations. That the phrase “rule or\nregulation” is used in conjunction with an administrative\nagency, the SEC, suggests that it encompasses only\nadministrative rules or regulations. Most notably, Congress\nuses the phrase “any rule or regulation of the [SEC]” in the\nsame list in which it uses “any provision of Federal law\nrelating to fraud against shareholders,” id., which strongly\nsuggests that there is a difference between the meaning of\n“rule or regulation” and “law.” See MacLean, 135 S. Ct. at\n919–20; Dep’t of Treasury, IRS, 494 U.S. at 931–32. The\nmost obvious explanation is that “law” encompasses\nstatutes, like the FCPA, whereas “rule or regulation” does\nnot.\n\n We reject Wadler’s arguments for a different\ninterpretation. First, Wadler argues that “rule or regulation\nof the SEC” should be broadly interpreted in light of SOX’s\nremedial purpose of protecting employees who report\ncorporate misconduct. It is a “familiar canon of statutory\n\f WADLER V. BIO-RAD LABORATORIES 15\n\nconstruction that remedial legislation should be construed\nbroadly to effectuate its purposes,” Tcherepnin v. Knight,\n389 U.S. 332, 336 (1967), but this canon should not be\n“treated . . . as a substitute for a conclusion grounded in the\nstatute’s text and structure,” CTS Corp. v. Waldburger,\n134 S. Ct. 2175, 2185 (2014).\n\n Second, Wadler’s reliance on legislative history—in the\nform of statements made on the Senate floor—is equally\nunavailing. When, as here, “a statute’s language is plain and\nunambiguous, our inquiry ends.” Christie v. Ga.-Pac. Co.,\n898 F.3d 952, 958 (9th Cir. 2018).\n\n In sum, statutory provisions of the FCPA, including the\nthree books-and-records provisions and anti-bribery\nprovision listed in Instruction 21, are not “rules or\nregulations of the SEC” under SOX § 806. The district court\nerred in instructing the jury otherwise. As noted above, in a\nmemorandum disposition filed this date, we conclude that\nthe instructional error was not harmless as to the SOX claim.\n\n 3.\n\n Having found error that was not harmless, we must\ndetermine the proper remedy. Bio-Rad argues that we must\nreverse with instructions to enter judgment in its favor\nbecause a properly instructed jury could not return a verdict\nfor Wadler. We disagree.\n\n When a district court commits instructional error, we\nreverse and direct entry of judgment if “the evidence\npresented [at] trial would not suffice, as a matter of law, to\nsupport a jury verdict under the properly formulated\n[instruction].” Boyle v. United Techs. Corp., 487 U.S. 500,\n513 (1988). Bio-Rad argues that there is insufficient\nevidence to support a verdict based on properly formulated\n\f16 WADLER V. BIO-RAD LABORATORIES\n\ninstructions. Although Bio-Rad acknowledges that\nInstruction 21 properly lists a books-and-records\nfalsification provision as an SEC rule or regulation in light\nof 17 C.F.R. § 240.13b2-1, Bio-Rad contends that there is\ninsufficient evidence to prove that Wadler reported conduct\nthat he reasonably believed violated that regulation.\n\n Evidence is insufficient only “if, under the governing\nlaw, there can be but one reasonable conclusion as to the\nverdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250\n(1986). Conversely, if “reasonable minds could differ as to\nthe import of the evidence,” the evidence is sufficient. Id. at\n250–51. Sufficiency is a low bar, especially because “we\nmust construe the facts in the light most favorable to the\njury’s verdict.” Shafer, 868 F.3d at 1115 (internal quotation\nmarks omitted).\n\n This already low bar is further lowered by the\nsubstantive law governing protected activity under § 806.\nSee Anderson, 477 U.S. at 250. In a new trial, Wadler would\nnot have to prove that he reported an actual violation. Van\nAsdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th Cir.\n2009); Sylvester v. Parexel Int’l LLC, No. 07-123, 2011 WL\n2517148, at 14 (Dep’t of Labor May 25, 2011) (en banc).\nHe would have to prove only that he “reasonably believed\nthat there might have been” a violation and that he was “fired\nfor even suggesting further inquiry.” Van Asdale, 577 F.3d\nat 1001. We have referred to this standard as a “minimal\nthreshold requirement.” Id.\n\n Construing the facts in the light most favorable to the\nverdict, a jury permissibly could find that Wadler satisfied\nthat minimal requirement. First, a reasonable jury could find\nthat the Audit Committee Memo suggested further inquiry\ninto whether Bio-Rad falsified books and records. The\nMemo described many instances in which Bio-Rad’s\n\f WADLER V. BIO-RAD LABORATORIES 17\n\nshipping documents did not match the billing documents of\ndistributors or end-users. Although a jury could find that\nsuch discrepancies did not raise books-and-records\nconcerns, or that they did not specifically implicate the\nSEC’s falsification regulation, a reasonable jury also could\nfind that further inquiry was warranted with respect to\nfalsification.\n\n Second, a reasonable jury could find that Wadler\nreasonably believed that Bio-Rad had falsified books and\nrecords. In a new trial, Wadler would have to prove that he\nsubjectively believed that the conduct described in the\nMemo evidenced the falsification of books and records and\nthat his belief was objectively reasonable in the\ncircumstances. Van Asdale, 577 F.3d at 1000; Sylvester,\n2011 WL 2517148, at 12. The objective reasonableness\ncomponent, the only component that Bio-Rad challenges on\nappeal, “is evaluated based on the knowledge available to a\nreasonable person in the same factual circumstances with the\nsame training and experience as the aggrieved employee.”\nSylvester, 2011 WL 2517148, at 12 (quoting Harp v.\nCharter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009)).\n“The reasonable belief standard requires an examination of\nthe reasonableness of a complainant’s beliefs, but not\nwhether the complainant actually communicated the\nreasonableness of those beliefs to management or the\nauthorities.” Id. at *13.\n\n There is sufficient evidence to support the objective\nreasonableness of Wadler’s belief that Bio-Rad had falsified\nbooks and records. Before he submitted the Audit\nCommittee Memo in February 2013, Wadler was aware of\nBio-Rad’s FCPA issues in several countries and the\nnumerous “red flags” in China. Wadler testified that\nCassingham thought the Life Tech audit documents showed\n\f18 WADLER V. BIO-RAD LABORATORIES\n\nbribery. Wadler also testified that a Bio-Rad employee\nreported an “under the covers” scheme in which Bio-Rad\nshipped free products. Finally, Wadler discovered Chinese\ncontracts without FCPA compliance language and with\nunauthorized terms providing for free product incentives.\n\n Bio-Rad argues that this evidence does not directly\nimplicate books-and-records falsification. A reasonable\njury, however, could find that a general counsel in Wadler’s\nposition reasonably believed that Bio-Rad was falsifying\nbooks and records as part of its alleged FCPA violations in\nChina. While the evidence needed to support a\nwhistleblower’s reasonable belief will necessarily vary with\nthe circumstances, § 806 generally does not require an\nemployee to undertake an investigation before reporting his\nconcerns. See Van Asdale, 577 F.3d at 1002 (“Requiring an\nemployee to essentially prove the existence of fraud before\nsuggesting the need for an investigation would hardly be\nconsistent with Congress’s goal of encouraging\ndisclosure.”). Such a requirement would undermine the\npurpose of SOX, particularly where, as here, a general\ncounsel reports his concerns to the Board of Directors\nbecause he believes that senior management is complicit in\nunlawful conduct. Wadler’s Audit Committee Memo\nprompted further investigation, and the Audit Committee’s\nChair testified that he thought Wadler “did a terrific job” by\nreporting his concerns. In these circumstances, there is\nsufficient evidence to support a SOX verdict under a\nproperly formulated falsification instruction. 3 We therefore\n\n\n 3\n Because the evidence at trial was even stronger with respect to the\nother FCPA provisions listed in Instruction 21, we reject Bio-Rad’s\nargument that the district court erred by concluding that substantial\nevidence supports all three verdicts.\n\f WADLER V. BIO-RAD LABORATORIES 19\n\ndo not reverse with instructions to direct entry of judgment\nin Bio-Rad’s favor.\n\n Accordingly, we vacate the SOX verdict against the\nCompany and Schwartz and remand for the district court to\nconsider whether a new trial is warranted. In light of our\ndecision below, affirming the Tameny verdict against the\nCompany and the corresponding verdict for compensatory\ndamages for past economic loss, the district court should\nconsider whether, and to what extent, any retrial would result\nin an impermissible double recovery for the same injury. See\nCalifornia v. Chevron Corp., 872 F.2d 1410, 1414 (9th Cir.\n1989). The district court may also consider any other\nreasons why our opinion might bar or obviate the need for a\nSOX retrial, or might limit the issues in such a retrial. If a\nnew trial is warranted, the district court may consider in the\nfirst instance whether to allow a “fraud against shareholders”\ntheory, as well as any other arguments consistent with this\nopinion. See, e.g., Bator v. Hawaii, 39 F.3d 1021, 1030 n.9\n(9th Cir. 1994).\n\n B. The Tameny Claim\n\n We now consider Bio-Rad’s challenge to the Tameny\nverdict. Bio-Rad argues that the SOX instructional error\ntainted the Tameny verdict because Wadler’s engaging in\nprotected activity under SOX was a predicate to his success\non the Tameny claim. However, Wadler contends that the\nTameny instruction, Instruction 27, referred to the SOX-\nprotected activity instructions simply to tell the jury that he\nhad to prove that he was retaliated against for reporting\nconduct that he reasonably believed violated the FCPA\nprovisions in Instruction 21—not because SOX itself was a\nnecessary part of his Tameny theory at trial. We agree with\nWadler.\n\f20 WADLER V. BIO-RAD LABORATORIES\n\n Under California law, a Tameny claim must rely on a\n“fundamental public policy” that is “tethered to” a\nconstitutional or statutory provision. Green v. Ralee Eng’g\nCo., 960 P.2d 1046, 1048–49 (Cal. 1998). The California\nSupreme Court has not decided whether SOX or the relevant\nFCPA provisions are tethered to a fundamental public policy\nfor purposes of Tameny. Because the parties do not dispute\nthose questions, we will not decide them either. 4 Instead, we\nassume without deciding that a plaintiff may state a Tameny\nclaim by alleging that he was retaliated against (1) for\nengaging in SOX-protected activity or (2) for reporting\nconduct that he reasonably believed violated the FCPA’s\nbribery or books-and-records provisions, regardless of\nwhether that report is protected by SOX. See id. at 1051\n(recognizing that Tameny protects reporting “a statutory\nviolation for the public’s benefit”); id. at 1059 (“[A]n\nemployee need not prove an actual violation of law; it\nsuffices if the employer fired him for reporting his\n‘reasonably based suspicions’ of illegal activity.”); Collier\nv. Superior Court, 279 Cal. Rptr. 453, 458 (Ct. App. 1991)\n(recognizing that Tameny protects reporting bribery).\n\n Wadler properly raised a Tameny theory based on a\nfundamental public policy tied to the FCPA, which was\nindependent of his claim under SOX. To begin with, the\nTameny portion of Wadler’s complaint referenced both the\nFCPA and SOX. And, like his complaint, the first version\nof Wadler’s proposed Tameny instruction referenced both\nSOX and the FCPA. Most notably, just before trial, Bio-Rad\nproposed a Tameny instruction that did not reference SOX at\n\n 4\n Indeed, as we explain below, Bio-Rad proposed a jury instruction\nin the district court suggesting that it accepted that the relevant FCPA\nprovisions are tethered to a fundamental public policy for purposes of\nTameny.\n\f WADLER V. BIO-RAD LABORATORIES 21\n\nall: “The plaintiff has the burden of proving . . . [t]hat Bio-\nRad discharged Plaintiff for making a report of what the\nPlaintiff in good faith and reasonably believed was an FCPA\nviolation.” The judge then proposed a Tameny instruction\n(Instruction 27) referencing only SOX. However, there is\nnothing to suggest that the judge did so in order to remove\nan FCPA-based Tameny theory from the case. To the\ncontrary, all available evidence indicates that the Tameny\ninstruction referred to protected activity under SOX simply\nto present the jury with a single factual theory of Tameny\nliability, which the parties understood could be based on a\nfundamental public policy tied to either SOX or the FCPA.\nAs Wadler acknowledged in the district court, and as Bio-\nRad recognizes on appeal, there was “complete overlap\nbetween the type of protected activity involved in [Wadler’s\nTameny] claim and his claim under the Sarbanes-Oxley\nAct.” Considering the structure of the final jury instructions\nand the record as a whole, we conclude that Wadler\npresented the jury with a single factual theory of Tameny\nliability, which turned on his report of alleged FCPA\nviolations and was not dependent on his claim under SOX.\n\n Instruction 27 (the Tameny instruction) was the first in a\nchain of cross-references that ultimately made the success of\nWadler’s Tameny claim dependent on whether Bio-Rad\nretaliated against him for reporting conduct that he\nreasonably believed violated the FCPA. Instruction 27 told\njurors that, to prevail on his Tameny claim, Wadler had to\nprove that a motivating reason for his discharge was\nengaging in protected activity under SOX. It then referred\njurors to the SOX instructions in order to determine if his\nactivity was protected.\n\n Notably, jurors were instructed that, to prevail on a\nTameny claim, Wadler had to believe that one of the\n\f22 WADLER V. BIO-RAD LABORATORIES\n\nprovisions listed in Instruction 21 (captioned “The Foreign\nCorrupt Practices Act”) had been violated. Instruction 21\nlisted provisions of the FCPA: it is unlawful to (1) bribe a\nforeign official; (2) fail to keep accurate and reasonably\ndetailed books and records; (3) knowingly falsify books and\nrecords; and (4) knowingly circumvent a system of internal\naccounting controls. Although this Instruction was\nerroneous to the extent that it told jurors that a violation of\nthe FCPA was a rule or regulation of the SEC for the\npurposes of SOX, as discussed supra, there is no dispute that\nInstruction 21 correctly described the provisions of the\nFCPA. See 15 U.S.C. § 78dd-1(a) (anti-bribery); id.\n§ 78m(b)(2)(A) (keeping accurate books and records) &\n(b)(5) (“knowingly circumvent . . . a system of internal\naccounting controls” and “knowingly falsify any book,\nrecord, or account.”). Thus, on the Tameny claim, jurors\nwere instructed that Wadler had to show that he had\nreasonably believed Bio-Rad violated the provisions of the\nFCPA listed in Instruction 21 and that Bio-Rad discharged\nhim for disclosing that belief.\n\n Assuming, as we must, that the jury correctly followed\nthe cross-references in the instructions, Westinghouse Elec.\nCorp. v. Gen. Circuit Breaker & Elec. Supply Inc., 106 F.3d\n894, 901 (9th Cir. 1997), it necessarily found that Bio-Rad\nviolated Tameny with respect to the alleged FCPA\nviolations. We have repeatedly held that an instructional\nerror is harmless when the jury necessarily would have\nreached the same verdict under a proper instruction. See\nSnyder v. Freight, Constr., Gen. Drivers, Warehousemen &\nHelpers, Local No. 287, 175 F.3d 680, 688–89, 688 n.12 (9th\nCir. 1999); United States v. Washington, 106 F.3d 1488,\n1490 (9th Cir. 1997) (per curiam); Westinghouse Elec.\nCorp., 106 F.3d at 902. In these circumstances, the SOX\ninstructional error was harmless as to the Tameny verdict\n\f WADLER V. BIO-RAD LABORATORIES 23\n\nbecause Wadler’s Tameny claim—that Bio-Rad retaliated\nagainst him for reporting conduct that he reasonably\nbelieved violated the FCPA—did not depend on SOX.\n\n V.\n\n In sum, on the SOX claim, we VACATE and REMAND\nfor the district court to consider whether a new trial is\nwarranted. On the Tameny claim, we AFFIRM the jury’s\nverdict, which is against the Company only. We also\nAFFIRM the corresponding award of compensatory and\npunitive damages against the Company, except for the\nportion of damages attributable to Dodd-Frank’s doubling\nprovision. As discussed in the memorandum filed this date,\nwe VACATE the Dodd-Frank verdict with instructions to\nthe district court to enter judgment in favor of the Company\nand Schwartz on that claim.\n\n VACATED in part, AFFIRMED in part, and\nREMANDED. The parties shall bear their own costs on\nappeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371187/", "author_raw": "BENNETT, Circuit Judge:"}]}	SUSAN P GRABER	MARK J BENNETT	LESLIE E KOBAYASHI	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593934/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,935		Katherine Miller v. Jay Inslee	2019-02-26	16-35939	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Susan P. Graber, M. Margaret McKeown, and Morgan Christen, Circuit Judges.", "parties": "", "opinions": [{"author": "CHRISTEN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nCYNTHIA MENTELE, No. 16-35939\n Plaintiff,\n D.C. No.\n and 3:15-cv-05134-RBL\n\nKATHERINE MILLER,\n Plaintiff-Appellant, OPINION\n\n v.\n\nJAY INSLEE, in His Official\nCapacity as Governor of the\nState of Washington; KEVIN W.\nQUIGLEY, in His Official\nCapacity as Director of the\nWashington State Office of\nFinancial Management; DAVID\nSCHUMACHER, in His Official\nCapacity as Director of the\nWashington State Office of\nFinancial Management; SERVICE\nEMPLOYEES INTERNATIONAL\nUNION, LOCAL 925, a labor\norganization,\n Defendants-Appellees.\n\n2 MILLER V. INSLEE\n\n Appeal from the United States District Court\n for the Western District of Washington\n Ronald B. Leighton, District Judge, Presiding\n\n Argued and Submitted December 3, 2018\n Seattle, Washington\n\n Filed February 26, 2019\n\n Before: Susan P. Graber, M. Margaret McKeown,\n and Morgan Christen, Circuit Judges.\n\n Opinion by Judge Christen;\n Concurrence by Judge Graber\n\n\n SUMMARY\n\n\n Civil Rights\n\n The panel affirmed the district court’s summary judgment\nfor the State of Washington in an action brought pursuant to\n42 U.S.C. § 1983 alleging that Washington’s authorization\nfor the Service Employees International Union Local 925\n(SEIU) to act as the exclusive collective bargaining\nrepresentative for Washington’s publicly subsidized childcare\nproviders violated plaintiff’s First Amendment rights.\n\n Plaintiff, a Washington State childcare provider, alleged\nthat Washington’s arrangement with SEIU violated her rights\n\n \n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n MILLER V. INSLEE 3\n\nof free speech and association. Applying Minnesota State\nBoard for Community Colleges v. Knight, 465 U.S. 271\n(1984), the panel held that Washington’s authorization of an\nexclusive bargaining representative did not infringe plaintiff’s\nFirst Amendment rights. The panel further held that even\nassuming that Knight no longer governed the question\npresented in light of the Supreme Court’s decision in Janus\nv. American Federation of State, County, & Municipal\nEmployees, Council 31, 138 S. Ct. 2448 (2018), the panel\nwould still conclude that Washington’s exclusive bargaining\narrangement with SEIU was constitutionally permissible.\nThe panel noted that the childcare providers were partial state\nemployees for whom SEIU’s scope of representation was\nrelatively circumscribed and that the State’s exclusive\nbargaining arrangement with SEIU served the compelling—\nand enduring—state interest of labor peace.\n\n Concurring, Judge Graber wrote separately to state her\nview that, with respect to plaintiff’s associational rights, she\nwould follow the Eighth Circuit’s analysis in Bierman v.\nDayton, 900 F.3d 570, 574 (8th Cir. 2018), and hold that\nthere was no “meaningful distinction” between this case and\nthe Supreme Court’s decision in Minnesota State Board for\nCommunity Colleges v. Knight, 465 U.S. 271 (1984).\n\n\n COUNSEL\n\nMilton L. Chappell (argued), National Right to Work Legal\nFoundation, Inc., Springfield, Virginia; James G. Abernathy\nand David M.S. Dewhirst, Freedom Foundation, Olympia,\nWashington; for Plaintiff-Appellant.\n\n4 MILLER V. INSLEE\n\nCallie A. Castillo (argued), Deputy Solicitor General; Gina L.\nComeau and Alicia O. Young, Assistant Attorneys General;\nRobert W. Ferguson, Attorney General; Attorney General’s\nOffice, Olympia, Washington; for Defendants-Appellees Jay\nInslee, Kevin W. Quigley, and David Schumacher.\n\nScott A. Kronland (argued), Altshuler Berzon LLP, San\nFrancisco, California; Schwerin Campbell Barnard and\nRobert H. Lavitt, Iglitzin & Lavitt LLP, Seattle, Washington;\nfor Defendant-Appellee Service Employees International\nUnion Local 925.\n\n\n OPINION\n\nCHRISTEN, Circuit Judge:\n\n The State of Washington authorized the Service\nEmployees International Union Local 925 (SEIU) to act as\nthe exclusive collective bargaining representative for\nWashington’s publicly subsidized childcare providers.\nKatherine Miller, a Washington childcare provider,\nchallenges that arrangement as an infringement of her First\nAmendment rights of free speech and association. We have\njurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the\ndistrict court’s order granting summary judgment to SEIU\nand Washington State.\n\n I.\n\n Washington provides financial assistance to qualifying\nfamilies for childcare costs. Under the terms of this program,\nfamilies choose independent childcare providers and pay\n\n MILLER V. INSLEE 5\n\nthem on a scale commensurate with the families’ income\nlevels. The State covers the remaining cost.\n\n Before 2006, Washington unilaterally determined subsidy\nlevels and other policies governing its childcare assistance\nprograms, through legislation and regulations. But in 2006,\nWashington re-categorized the providers as “public\nemployees” for purposes of the State’s collective bargaining\nlegislation and authorized the providers to elect an exclusive\ncollective bargaining representative to negotiate with the\nState on their behalf. Wash. Rev. Code § 41.56.028. Because\nthe childcare providers are state employees only for purposes\nof collective bargaining, they are considered “partial” state\nemployees, rather than full-fledged state employees, and\nWashington law limits the scope of their collective\nbargaining agent’s representation. For example, families\ncontinue to be the providers’ primary employers, id.\n§ 41.56.028(4)(a); the providers are not allowed to strike, id.\n§ 41.56.028(2)(e); and the bargaining agent cannot negotiate\nabout certain issues, id. § 41.56.028(2)(c) (“[r]etirement\nbenefits shall not be subject to collective bargaining”).\n\n The childcare providers elected SEIU as their exclusive\nbargaining representative, and SEIU negotiated a number of\nterms and conditions for them as part of a state-wide\ncollective bargaining agreement. Childcare providers are not\nrequired to join SEIU, but SEIU is nonetheless “required to\nrepresent[] all the public employees within the unit without\nregard to membership.” Id. § 41.56.080. SEIU members pay\nunion dues to support SEIU. Non-union members previously\npaid “agency fees” to support SEIU’s collective bargaining\nefforts, but SEIU and the State eliminated the agency fees\nprovision from their collective bargaining agreement after the\nSupreme Court’s decision in Harris v. Quinn, 134 S. Ct. 2618\n\n6 MILLER V. INSLEE\n\n(2014) (holding that states may not compel partial state\nemployees to pay agency fees for union representation).1\n\n Katherine Miller and Cynthia Mentele, two Washington\nstate childcare providers, filed suit in March of 2015 against\nState officials and SEIU. Miller is a former SEIU member;\nthe record is unclear about whether Mentele was a member.\nBoth plaintiffs alleged that their First Amendment right to\nexpressive association was violated when Washington\nrecognized SEIU as the exclusive bargaining representative\nfor all childcare providers because SEIU necessarily spoke\nand negotiated on their behalf. Miller and Mentele sought\ndeclaratory and injunctive relief pursuant to 42 U.S.C.\n§ 1983. The complaint did not clearly define the nature of the\nrelief Miller and Mentele sought, but the briefing filed with\nour court clarified that they sought neither the opportunity to\nnegotiate with the union themselves nor the complete\nelimination of a collective bargaining representative.\n\n The parties filed cross-motions for summary judgment.\nThe district court granted the motion filed by the State and\nSEIU, while denying the motion filed by Miller and Mentele.\nThe parties stipulated to the dismissal of Mentele’s additional\nclaim that sought reimbursement of past union dues.\n\n Miller alone appeals the district court’s judgment. We\nreview de novo the district court’s order granting summary\njudgment. Stanford Univ. Hosp. v. Fed. Ins. Co., 174 F.3d\n1077, 1082 (9th Cir. 1999).\n\n\n 1\n Agency fees are reduced union dues paid by non-union member\nemployees to support the union’s collective bargaining efforts. See, e.g.,\nJanus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct.\n2448, 2460–61 (2018).\n\n MILLER V. INSLEE 7\n\n II.\n\n A.\n\n Our analysis relies largely on two Supreme Court cases\nthat discuss the propriety of exclusive bargaining\nrepresentation for public employees: the Supreme Court’s\ndecision in Minnesota State Board for Community Colleges\nv. Knight, 465 U.S. 271 (1984); and its recent decision in\nJanus v. American Federation of State, County, & Municipal\nEmployees, Council 31, 138 S. Ct. 2448 (2018). Two other\ncases provide important context for our decision: Abood v.\nDetroit Board of Education, 431 U.S. 209 (1977), and Harris,\n134 S. Ct. 2618. SEIU and the State argue that Knight\ncontrols the outcome of this appeal; Miller argues that we are\nbound by Janus.\n\n Knight involved a challenge by community college\nprofessors to two statutory provisions under Minnesota law:\n(1) a “meet and negotiate” provision, which required the State\nto meet and negotiate with the faculty’s exclusive bargaining\nrepresentative (e.g., the faculty’s union) concerning the terms\nand conditions of employment; and (2) a “meet and confer”\nprovision, which required the State to meet and confer with\nthe exclusive representative regarding “policy questions\nrelating to employment but outside the scope of mandatory\nbargaining.” Knight, 465 U.S. at 273–75, 279. The Court\nsummarily affirmed the “meet and negotiate” requirement, id.\nat 279, and separately concluded that the exclusion of non-\nunion members from the State’s “meet and confer” provision\ndid not infringe the non-union members’ First Amendment\nrights:\n\n8 MILLER V. INSLEE\n\n Appellees’ speech and associational rights,\n however, have not been infringed by\n Minnesota’s restriction of participation in\n “meet and confer” sessions to the faculty’s\n exclusive representative. The state has in no\n way restrained appellees’ freedom to speak on\n any education-related issue or their freedom\n to associate or not to associate with whom\n they please, including the exclusive\n representative.\n\nId. at 288. The Court explained that the non-union members\nhad not been denied access to a public forum, id. at 280–83,\nthat state employees had no right to be heard by, or negotiate\nindividually with, a public body, id. at 283–85, and that the\nnon-union members were free to form advocacy groups or\notherwise make their views known to the State and associate\nwith whomever they wished to associate, id. at 288–90. The\nCourt concluded that the non-union members’ rights to free\nspeech and association were not abridged by the meet and\nconfer provision.\n\n Significant for the present appeal, Knight was decided a\nfew years after the Court’s decision in Abood v. Detroit\nBoard of Education. In Abood, the Court concluded that,\nalthough compulsory agency fees impinge employees’ First\nAmendment rights to some extent, the mandatory fees were\nnevertheless justified by the State’s compelling interest in\n“labor peace”; i.e., the logistical and managerial benefits that\naccrue when an employer negotiates only with one exclusive\nrepresentative. 431 U.S. at 232–37. Though it followed\nAbood by a few years, Knight never mentioned labor peace\nand instead upheld Minnesota’s meet and confer provision by\nconcluding that it did not infringe the non-union members’\n\n MILLER V. INSLEE 9\n\nFirst Amendment associational rights at all. In this way,\nKnight expressly cabined Abood, explaining that the First\nAmendment infringement in Abood was the result of the\n“compulsory collection of dues” from non-union members,\nand observing that Abood did not address whether exclusive\nrepresentation infringed the non-union members’\nassociational rights. See Knight, 465 U.S. at 291 n.13\n(emphasis added).\n\n Following Knight, every circuit court to address the\nconstitutionality of exclusive bargaining arrangements (as\ndistinct from the constitutionality of compelling financial\nsupport for such bargaining arrangements) has concluded that\nthese provisions do not violate the First Amendment.\nD’Agostino v. Baker, 812 F.3d 240, 242–44 (1st Cir. 2016)\n(Souter, J., by designation); Hill v. Serv. Emps. Int’l Union,\n850 F.3d 861, 864–65 (7th Cir.), cert. denied, 138 S. Ct. 446\n(2017); Bierman v. Dayton, 900 F.3d 570, 574 (8th Cir.\n2018), petition for cert. filed, ___U.S.L.W. ___ (U.S.\nDec. 13, 2018) (No. 18-766); Jarvis v. Cuomo, 660 F. App’x\n72, 74–75 (2d Cir. 2016) (order) (unpublished).\n\n In 2014, thirty years after it decided Knight, the Court\naddressed the constitutionality of compelling agency fees\nfrom non-union members who are partial state employees like\nthe childcare providers here. Harris, 134 S. Ct. 2618. Harris\nacknowledged Abood’s “labor peace” justification for\ncompelling agency fees to support exclusive bargaining\nrepresentation, but it did not extend Abood’s rationale to\nunion representation of partial state employees. Id. at 2640.\nIn fact, contrary to Abood’s rationale, in Harris the Court\ndecided that compelled fees are not necessary to ensure labor\npeace because public sector unions can effectively operate\nwith the support of the dues paid by union members alone.\n\n10 MILLER V. INSLEE\n\nId. at 2640–41. In any event, Harris reasoned, there are\nminimal labor peace benefits to be gained when partial\nemployees are represented because the scope of their unions’\nrepresentation is limited. Id. at 2640.\n\n The Court decided Janus in 2018. Janus alluded to the\npropriety of exclusive representation arrangements, but it\nprimarily considered the constitutionality of compelling full-\nfledged, non-union member state employees to pay agency\nfees. 138 S. Ct. at 2459–60. Janus reaffirmed that labor\npeace is a compelling state interest, but it overruled Abood’s\nholding that labor peace justifies requiring non-union\nmembers to pay agency fees. Id. at 2465–66. Janus then\nwent on to observe:\n\n It is also not disputed that the State may\n require that a union serve as exclusive\n bargaining agent for its employees—itself a\n significant impingement on associational\n freedoms that would not be tolerated in other\n contexts. We simply draw the line at allowing\n the government to go further still and require\n all employees to support the union\n irrespective of whether they share its views.\n\nId. at 2478. In this passage, Janus suggested that exclusive\nbargaining representation does significantly impinge on\nassociational freedoms, but in the same breath the Court\nstated that this degree of impingement is justified or\n“tolerated” in the context of collective bargaining agents. Id.\nJanus explained that “States can keep their labor-relation\nsystems exactly as they are”; they just “cannot force\nnonmembers to subsidize public-sector unions,” id. at 2485\nn.27 (emphasis added). Also in Janus, the Supreme Court\n\n MILLER V. INSLEE 11\n\nexpressly distinguished between compelling non-union\nmembers to pay agency fees (constitutionally impermissible)\nand mandating that any union representation be exclusive,\nwhich the Court suggested is a tolerated impingement of non-\nunion members’ First Amendment rights.\n\n Miller contends that we are bound by Janus’s observation\nthat exclusive union representation of non-union members\nimpinges First Amendment rights. Appellees contend that\nKnight controls because Janus’s reference to exclusive\nrepresentation is dictum unnecessary to Janus’s primary\nholding.\n\n B.\n\n We conclude that the Supreme Court’s holding in Knight\nis the most appropriate guide. The salient rationale from\nKnight merits repeating:\n\n [T]he First Amendment guarantees the right\n both to speak and to associate. Appellees’\n speech and associational rights, however,\n have not been infringed by Minnesota’s\n restriction of participation in “meet and\n confer” sessions to the faculty’s exclusive\n representative. The state has in no way\n restrained appellees’ freedom to speak on\n any education-related issue or their freedom\n to associate or not to associate with whom\n they please, including the exclusive\n representative. . . .\n\n ....\n\n12 MILLER V. INSLEE\n\n . . . [A]ppellees’ associational freedom has\n not been impaired. Appellees are free to form\n whatever advocacy groups they like. They are\n not required to become members of [the\n union], and they do not challenge the\n monetary contribution they are required to\n make to support [the union’s] representation\n activities.\n\nKnight, 465 U.S. at 288–89. The Court further summarized\nin a footnote that the appellees’ “speech and associational\nfreedom have been wholly unimpaired” by the meet and\nconfer provision. Id. at 290 n.12 (emphasis added). Given\nthe importance of that analysis to the Court’s opinion, we do\nnot view those statements as dictum.\n\n Miller insists that Knight is not precisely on point. We\nacknowledge that Knight’s recognition that a state cannot be\nforced to negotiate or meet with individual employees2 is\narguably distinct from Miller’s contention that employees’\nassociational rights are implicated when a state recognizes an\nexclusive bargaining representative with which non-union\nemployees disagree. For Miller, the fact that she is free to\ncommunicate her opinions or associate with whomever she\nchooses does not alleviate her concern that a union she\ndislikes is speaking for her. Miller is not complaining about\nan inability to speak herself; she just wants to be “left alone\nto make her own decisions regarding associations and her\nspeech.”\n\n\n\n\n 2\n See 465 U.S. at 283–84 (citing Bi-Metallic Inv. Co. v. State Bd. of\nEqualization, 239 U.S. 441 (1915)).\n\n MILLER V. INSLEE 13\n\n Despite these differences, Knight is a closer fit than\nJanus. See Agostini v. Felton, 521 U.S. 203, 237 (1997)\n(explaining “the Court of Appeals should follow” the\nprecedent that has “direct application”). Knight addressed the\nFirst Amendment rights of non-union members who were\nexcluded from union meetings with the State, and Miller\nclaims that her First Amendment rights are infringed when\nSEIU purports to speak on her behalf even though she abhors\nthe union. Knight acknowledged that exclusive bargaining\nrequired the State to treat the union representatives as\nexpressing “the faculty’s official collective position” even\nthough “not every instructor agrees with the official faculty\nview on every policy question.” 465 U.S. at 276. In this\nway, Knight addresses Miller’s objection because\nMinnesota’s exclusion of non-union faculty members from\nmeet and confer sessions necessarily meant that union\nrepresentatives expressed the faculty’s “official collective\nposition” on behalf of even dissenting non-union members.\nKnight expressly concluded that such a system “in no way\nrestrained appellees’ . . . freedom to associate or not to\nassociate with whom they please, including the exclusive\nrepresentative,” id. at 288 (emphasis added), and it approved\nthe requirement that bound non-union dissenters to exclusive\nunion representation.\n\n Miller argues that Janus overruled Knight and that Janus\ncontrols the outcome of this case, but we are not persuaded.\nThe cases presented different questions, as we have\nexplained, and Janus never mentions Knight. To accept\nMiller’s argument, we would have to conclude that the brief\npassage Miller relies upon (two sentences at most), which\naddresses a question that was not presented or argued and\nwhich was unnecessary to the Court’s holding, was\nnevertheless intended to overrule the Court’s earlier decision\n\n14 MILLER V. INSLEE\n\nin Knight sub-silentio. See Bierman, 900 F.3d at 574\n(concluding that Janus did not overrule Knight). We are\nunwilling to make that leap. The same passage Miller\nidentifies as evidence that Knight did not survive Janus goes\non to expressly affirm the propriety of mandatory union\nrepresentation, which is consistent with Knight. Janus is also\nclear that the degree of First Amendment infringement\ninherent in mandatory union representation is tolerated in the\ncontext of public sector labor schemes. 138 S. Ct. at 2478\n(“We simply draw the line at allowing the government to go\nfurther still and require all employees to support the union\nirrespective of whether they share its views.”). Janus’s\nreference to infringement caused by exclusive union\nrepresentation, even in the context of its broader discussion\nof Abood and the Court’s long history of relying on labor\npeace to justify certain provisions in collective bargaining\nagreements, is not an indication that the Court intended to\nrevise the analytical underpinnings of Knight or otherwise\nreset the longstanding rules governing the permissibility of\nmandatory exclusive representation. The Supreme Court has\ndirected that we should “leav[e] to [the Supreme] Court the\nprerogative of overruling its own decisions,” and follow\n“direct[ly] applica[ble]” precedent, even if subsequent\ndecisions call into question some of that precedent’s\nrationale. Agostini, 521 U.S. at 237; see Bierman, 900 F.3d\nat 574. Consistent with that directive, we apply Knight’s\nmore directly applicable precedent, rather than relying on the\npassage Miller cites from Janus, and hold that Washington’s\nauthorization of an exclusive bargaining representative does\nnot infringe Miller’s First Amendment rights.\n\n MILLER V. INSLEE 15\n\n The Eighth Circuit reached the same conclusion, for\nessentially the same reasons, in Bierman, the only circuit-\ncourt decision to have addressed this issue after the Supreme\nCourt decided Janus. Bierman concerned Minnesota’s law\nauthorizing in-home care providers to elect an exclusive\nrepresentative to negotiate employment terms with the State.\n900 F.3d at 572. A group of providers challenged the law,\narguing that it “unconstitutionally compels them to associate\nwith the exclusive negotiating representative.” Id. The\nEighth Circuit concluded that Janus did not affect this\nanalysis, followed the reasoning in Knight, and rejected the\nproviders’ argument. Id. at 574; accord Reisman v.\nAssociated Faculties of Univ. of Me., No. 1:18-cv-00307-\nJDL, 2018 WL 6312996, at 2–5 (D. Me. Dec. 3, 2018)\n(order); Uradnik v. Inter Faculty Org., Civ. No. 18-1895\n(PAM/LIB), 2018 WL 4654751, at 2 (D. Minn. Sept. 27,\n2018) (unpublished).\n\n C.\n\n Even if we assume that Knight no longer governs the\nquestion presented by Miller’s appeal, we would reach the\nsame result: SEIU’s authorized position as the childcare\nproviders’ exclusive representative is constitutionally\npermissible.\n\n At least in the context of organized labor, the\nimpingement of First Amendment rights must, at a minimum,\nsatisfy “exacting scrutiny”; i.e., it must “serve a compelling\nstate interest that cannot be achieved through means\nsignificantly less restrictive of associational freedoms.”\nJanus, 138 S. Ct. at 2465. (quoting Knox v. Serv. Emps. Int’l\n\n16 MILLER V. INSLEE\n\nUnion, Local 1000, 567 U.S. 298, 310 (2012)).3 “Exacting\nscrutiny encompasses a balancing test. In order for a\ngovernment action to survive exacting scrutiny, the strength\nof the governmental interest must reflect the seriousness of\nthe actual burden on First Amendment rights.” Ctr. for\nCompetitive Politics v. Harris, 784 F.3d 1307, 1312 (9th Cir.\n2015) (internal quotation marks omitted). We therefore begin\nby assessing the seriousness of the burden on Miller’s\nassociational rights.\n\n The childcare providers here are partial state employees\nfor whom SEIU’s scope of representation is relatively\ncircumscribed. See Wash. Rev. Code § 41.56.028 (describing\nlimitations of representative’s bargaining power). The\nproviders are not allowed to strike, SEIU cannot negotiate\ntheir retirement benefits, families retain the right to choose\nand terminate any provider, and the legislature retains the\nunilateral right to adopt personnel requirements and to make\nprogrammatic modifications. See id. § 41.56.028(2)(c), (2)(e)\n& (4)(a); see also Harris, 134 S. Ct. at 2634–37 (describing\nsimilarly limited scope of the union’s bargaining authority).\nBecause of SEIU’s limited role in representing partial\n\n 3\n The Court in Janus applied “exacting scrutiny” to the question\nwhether compelling agency fees from non-union members is permissible,\nas it had done in Harris and in Knox. 138 S. Ct. at 2465. But the Court\nnoted that strict scrutiny may be more appropriate due to the First\nAmendment rights at stake. Id. The Court did not need to resolve that\nquestion in Janus because the statute at issue failed even exacting\nscrutiny, id., but we note that the Court previously applied exacting\nscrutiny to challenges of free association rights. See, e.g., Roberts v. U.S.\nJaycees, 468 U.S. 609, 623 (1984). If we concluded that Miller’s First\nAmendment rights were infringed by SEIU’s representation, we would be\nobliged to apply “exacting scrutiny” to decide whether the infringement\nis constitutionally permissible, because this was the test the Court applied\nin Roberts, Knox, Harris, and Janus. See Agostini, 521 U.S. at 237.\n\n MILLER V. INSLEE 17\n\nemployees, any impingement of the employees’ speech and\nassociational freedoms is correspondingly reduced.\n\n Against that backdrop, we conclude that the State’s\nexclusive bargaining arrangement with SEIU serves the\ncompelling—and enduring—state interest of labor peace.\nJanus did not revisit the longstanding conclusion that labor\npeace is “a compelling state interest,” 138 S. Ct. at 2465, and\nthe Court has long recognized that exclusive representation is\nnecessary to facilitate labor peace; without it, employers\nmight face “inter-union rivalries” fostering “dissension within\nthe work force,” “conflicting demands from different unions,”\nand confusion from multiple agreements or employment\nconditions, id. (quoting Abood, 431 U.S. at 220–21). For the\nfollowing reasons, Washington’s continued compelling\ninterest in labor peace justifies the minimal infringement\nassociated with SEIU’s exclusive representation. Accord\nUradnik, 2018 WL 4654751, at *3.\n\n First, Washington has an interest in negotiating with only\none entity, at least for the sake of efficiency and managerial\nlogistics, and that interest persists even if, per Harris,\nWashington’s interest in the payment of fees to support the\nunion dwindles with the reduced union representation.\nWashington’s scheme calls for the negotiation of\ncomparatively few conditions, but it does not eliminate the\nState’s interest in avoiding the competing demands of rival\nrepresentatives, the potential confusion that would result from\nmultiple agreements, and possible dissension among the\nproviders. See Janus, 138 S. Ct. at 2465–66.\n\n18 MILLER V. INSLEE\n\n Second, Janus specifically acknowledged that exclusive\nrepresentation is constitutionally permissible. Id. at 2478.\nThe Court reaffirmed that “[s]tates can keep their labor-\nrelation systems exactly as they are—only they cannot force\nnonmembers to subsidize public-sector unions.” Id. at 2485\nn.27. This statement is consistent with Harris, which\nconcluded that compulsory agency fees are not justified for\npublic sector unions representing partial employees, in part\nbecause of the union’s limited scope of representation, see\n134 S. Ct. at 2640; and it follows from Janus’s own statement\nthat exclusive bargaining systems are acceptable for public\nemployees, even though compulsory agency fees are not,\n138 S. Ct. at 2478. These cases establish a bright line\ndistinction between allowing exclusive representation and\nmandating the payment of agency fees.\n\n Finally, applying an exacting standard, we know of no\nalternative that is “significantly less restrictive of\nassociational freedoms.” Id. at 2465. Because SEIU’s\nlimited representation already reduces the level of any\ninfringement, it is difficult to imagine an alternative that is\n“significantly less restrictive” than the one Washington\nemploys. Id. (emphasis added). Miller has not suggested an\nalternative way for the State to solicit meaningful input from\nchildcare providers while simultaneously avoiding the chaos\nand inefficiency of having multiple bargaining\nrepresentatives or negotiating with individual providers. See\nWash. Rev. Code § 41.56.010 (declaration of purpose).\nMiller wants to be left alone, but it is unclear what sort of\nsystem Washington would or could implement to satisfy this\ndemand, apart from unilaterally deciding the terms of\nemployment for partial employees.\n\n MILLER V. INSLEE 19\n\n Even assuming that Knight no longer governs the question\npresented, we would still conclude that Washington’s\nexclusive bargaining arrangement with SEIU is\nconstitutionally permissible.\n\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371188/", "author_raw": "CHRISTEN, Circuit Judge:"}, {"author": "GRABER, Circuit Judge, concurring", "type": "concurrence", "text": "GRABER, Circuit Judge, concurring:\n\n I concur in full in the opinion. I write separately only to\nstate my view that the conclusion we reach in Part II-B is less\ntenuous than the opinion makes it sound. I agree entirely\nwith the Eighth Circuit’s reasoning in Bierman v. Dayton,\n900 F.3d 570, 574 (8th Cir. 2018), a case similar to ours. I\nwould follow the Eighth Circuit’s analysis and hold that, with\nrespect to Plaintiffs’ associational rights, there is no\n“meaningful distinction” between this case and the Supreme\nCourt’s decision in Minnesota State Board for Community\nColleges v. Knight, 465 U.S. 271 (1984). Bierman, 900 F.3d\nat 574. Accordingly, we are bound by Knight. Agostini v.\nFelton, 521 U.S. 203, 237 (1997).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371188/", "author_raw": "GRABER, Circuit Judge, concurring"}]}	SUSAN P GRABER	M MARGARET MCKEOWN	MORGAN CHRISTEN	1	{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593935/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,936		J.B. v. United States	2019-02-26	16-15999	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Kim McLane Wardlaw and Jacqueline H. Nguyen, Circuit Judges, and Solomon Oliver, Jr., * District Judge.", "parties": "", "opinions": [{"author": "WARDLAW, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n J.B.; P.B., No. 16-15999\n Petitioners-Appellees,\n D.C. No.\n v. 4:15-cv-04764-YGR\n\n UNITED STATES OF AMERICA,\n Respondent-Appellant. OPINION\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Yvonne Gonzalez Rogers, District Judge, Presiding\n\n Argued and Submitted April 12, 2018\n San Francisco, California\n\n Filed February 26, 2019\n\nBefore: Kim McLane Wardlaw and Jacqueline H. Nguyen,\n Circuit Judges, and Solomon Oliver, Jr., * District Judge.\n\n Opinion by Judge Wardlaw\n\n\n\n\n \n The Honorable Solomon Oliver, Jr., United States District Judge\nfor the Northern District of Ohio, sitting by designation.\n\f2 J.B. V. UNITED STATES\n\n SUMMARY \n\n\n Tax\n\n The panel affirmed the district court’s order quashing the\nInternal Revenue Service’s subpoena to the California\nSupreme Court, seeking documents in connection with a tax\naudit.\n\n Taxpayers J.B and P.B. are an elderly married couple\nwho were selected at random for a compliance research\nexamination, as part of the IRS’s National Research\nProgram. In connection with the audit, the IRS issued a\nsummons to the California Supreme Court seeking various\ndocuments, and taxpayers filed a petition to quash. The\ndistrict court concluded that the IRS had not provided\nsufficient notice to taxpayers that it would contact the\nCalifornia Supreme Court, in violation of I.R.C.\n§ 7602(c)(1)’s requirement that the IRS provide “reasonable\nnotice in advance” to taxpayers.\n\n The panel concluded that “reasonable notice in advance”\nmeans notice reasonably calculated, under all the relevant\ncircumstances, to apprise interested parties of the possibility\nthat the IRS may contact third parties, and that affords\ninterested parties a meaningful opportunity to resolve issues\nand volunteer information before third-party contacts are\nmade. Although the IRS argued that its Publication 1\nprovided adequate notice, reviewing the totality of the\ncircumstances, the panel agreed with the district court that\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f J.B. V. UNITED STATES 3\n\nPublication 1 did not provide the requisite reasonable\nadvance notice. The panel explained that a reasonable notice\nmust provide the taxpayer with a meaningful opportunity to\nvolunteer records on his own, so that third-party contacts\nmay be avoided if the taxpayer complies with the IRS’s\ndemand.\n\n\n COUNSEL\n\nNathaniel S. Pollock (argued), Robert W. Metzler, and\nMichael J. Huangs, Attorneys; Caroline D. Ciraolo,\nPrincipal Deputy Assistant Attorney General; David A.\nHubbert, Acting Assistant Attorney General; Brian Stretch,\nUnited States Attorney; United States Department of Justice,\nWashington, D.C.; for Respondent-Appellant.\n\nNorren Evans (argued), O’Brien Watters & Davis LLP,\nSanta Rosa, California; Sara Baxter and Joseph Baxter,\nSanta Rosa, California; for Petitioners-Appellees.\n\nFelipe S. Bohnet-Gomez, Steven T. Miller, and Dean A.\nZerbe, Zerbe Miller Fingeret Frank & Jadav LLP,\nWashington, D.C., for Amicus Curiae Zerbe Miller Fingeret\nFrank & Jadav LLP.\n\f4 J.B. V. UNITED STATES\n\n OPINION\n\nWARDLAW, Circuit Judge:\n\n Before the Internal Revenue Service (IRS) summons a\ntaxpayer’s financial records from employers, financial\ninstitutions, or other third parties, the IRS must provide the\ntaxpayer with “reasonable notice in advance.” 26 U.S.C.\n§ 7602(c)(1). 1 Our Circuit has yet to determine what notice\namounts to “reasonable notice in advance.” See Estate of\nChaiken v. United States, No. CV 16-80155 MC (DMRx),\n2016 WL 8255575, at 5–6 (N.D. Cal. Dec. 27, 2016)\n(describing intracircuit split). The IRS argues that a “general\nnotice,” like its “Publication 1,” 2 suffices in every\ncircumstance. Reaching the opposite conclusion, the district\ncourt opined that “the advance notice procedure cannot be\nsatisfied by the transmission of a publication about the audit\nprocess generally.”\n\n We reject a categorical approach to this question. We\nconclude that “reasonable notice in advance” means notice\nreasonably calculated, under all the relevant circumstances,\nto apprise interested parties of the possibility that the IRS\nmay contact third parties, and that affords interested parties\na meaningful opportunity to resolve issues and volunteer\ninformation before third-party contacts are made. See Jones\n\n 1\n Because Title 26 of the U.S. Code contains the entire Internal\nRevenue Code (I.R.C.), we refer interchangeably to Title 26 and the\nI.R.C.\n\n 2\n A version of Publication 1, updated September 2017, is publicly\navailable at https://www.irs.gov/pub/irs-pdf/p1.pdf. The version of\nPublication 1 that the IRS mailed to J.B. and P.B. is attached as Appendix\nA.\n\f J.B. V. UNITED STATES 5\n\nv. Flowers, 547 U.S. 220, 226 (2006) (citing Mullane v.\nCentral Hanover Bank & Trust Co., 339 U.S. 306, 314\n(1950) (discussing notice due to mortgagee)). Reviewing\nthe totality of the circumstances here, we affirm the district\ncourt’s order quashing the IRS’s 2011 subpoena to the\nCalifornia Supreme Court. 3\n\n I.\n\n J.B. and P.B. are an elderly married couple living in\nnorthern California. J.B. is an attorney who accepts\nappointments from the California Supreme Court to\nrepresent indigent criminal defendants in capital cases. On\nJuly 25, 2013, J.B. and P.B. received a letter in the mail from\nthe IRS, indicating that they had been “selected at random\nfor a compliance research examination.” J.B. and P.B., who\nhad already been selected for audits in 2008 and 2009,\nrecognized that the 2011 audit was unlike the 2008 and 2009\naudits. The 2011 audit was part of the IRS’s National\nResearch Program (NRP), which randomly selects taxpayers\nfor exhaustive audits to help the IRS “better understand tax\ncompliance and improve the fairness of the tax system.” 4\nBecause the NRP is so demanding and so unpopular with\ntaxpayers, Congress discontinued a prior iteration of the\n\n 3\n Zerbe, Miller, Fingeret, Frank & Jadav LLP’s motion for leave to\nfile a brief amicus curiae out of time (ECF No. 39) is GRANTED. J.B.\nand P.B.’s motion requesting leave to file a brief in response to\nAppellant’s response to the amicus curiae brief (ECF No. 53) is\nGRANTED. J.B. and P.B.’s unopposed motion to take judicial notice\n(ECF No. 56) is GRANTED.\n 4\n Government data suggests that, in 2003, as many as 47,000\ntaxpayers were selected at random for a NRP audit. See U.S. Gov’t\nAccountability Office, GAO-03-614, Tax Administration, IRS Is\nImplementing the National Research Program as Planned (2003), at 1,\nhttps://www.gao.gov/products/GAO-03-614.\n\f6 J.B. V. UNITED STATES\n\nNRP, known as the Taxpayer Compliance Measurement\nProgram, in 1988. A Closer Look at the Size and Sources of\nthe Tax Gap: Hearing Before the Subcomm. on Taxation and\nIRS Oversight of the Senate Comm. on Finance, 109th\nCong. 3 (2006) (statement of Mark J. Mazur, director of\nresearch, analysis, and statistics, IRS). The IRS reinstated\nthe program under its current name in 1998. Internal\nRevenue Manual (hereinafter IRM) 4.22.1.1.1 (Sept. 6,\n2017).\n\n The IRS letter instructed J.B. and P.B. to contact a\nrevenue agent at the IRS to discuss items on their 2011 tax\nreturn, as well as the “examination process” and “[a]ny\nconcerns or questions you may have.” In the same mailing,\nthe IRS enclosed a two-page notice entitled “Your Rights as\na Taxpayer.” The IRS refers to this notice as “Publication 1”\nor “The Taxpayer Bill of Rights.” On the second page of the\nnotice, under a heading entitled “Potential Third Party\nContacts,” the notice warns:\n\n Generally, the IRS will deal directly with you\n or your duly authorized representative.\n However, we sometimes talk with other\n persons if we need information that you have\n been unable to provide, or to verify\n information we have received. If we do\n contact other persons, such as a neighbor,\n bank, employer, or employees, we will\n generally need to tell them limited\n information, such as your name. . . . Our need\n to contact other persons may continue as long\n as there is activity in your case. If we do\n contact other persons, you have a right to\n request a list of those contacted.\n\f J.B. V. UNITED STATES 7\n\n Two months later, in September 2013, the IRS requested\ndocuments from J.B. and P.B. J.B. and P.B. asked the IRS\nto excuse them from the NRP audit because of J.B.’s poor\nhealth and the couples’ advanced age. J.B. remitted doctor’s\ndeclarations to the IRS showing that the NRP audit would\nworsen his hypertension and contribute to hypertensive\nretinopathy, a deteriorating eye condition, as well as his\nserious hearing loss. The IRS refused the couple’s request\nfor an exemption, leading J.B. and P.B. to file a separate suit\nto stop the audit in the Northern District of California in May\n2015. See No. CV 15-2138 (YGR) (N.D. Cal.).\n\n Even after J.B. and P.B. filed suit, however, the IRS\nmarched forward with its NRP audit. In September 2015,\nthe IRS issued a summons to the California Supreme Court\nseeking “copies of billing statements, invoices, or other\ndocuments . . . that resulted in payment to” J.B. for the 2011\ncalendar year. 5 The second page of the four-page summons\nwarned that the IRS had the power to “enforce obedience to\nthe requirements of the summons and to punish such person\nfor his default or disobedience.” The penalties for\nnoncompliance included a fine of “not more than $1,000” or\nimprisonment “not more than 1 year, or both, together with\ncosts of prosecution.”\n\n\n 5\n The IRS also issued a summons to the California Supreme Court\nfor the 2012 calendar year. The district court dismissed the petition to\nquash the 2012 summons as untimely. Although J.B. and P.B. initially\nappealed this decision, they voluntarily dismissed their appeal pursuant\nto Federal Rule of Appellate Procedure 42(b). J.B. and P.B. concede that\nthe 2012 summons is not at issue in this cross-appeal. Nor do they\nchallenge the district court’s conclusion, on reconsideration, that it did\nnot have jurisdiction to review, in camera, any documents that the\nCalifornia Supreme Court issued in response to the 2012 summons.\n\f8 J.B. V. UNITED STATES\n\n J.B. and P.B. did not learn that the IRS had issued the\nsummons until after-the-fact, when J.B. and P.B.’s daughter,\nwhom they had listed as a personal representative, received\na notice of service of summons in the mail. 6 In October\n2015, the couple filed a timely petition to quash the\nsummons in the Northern District of California.\n\n The district court evaluated J.B. and P.B.’s petition under\nPowell v. United States, 379 U.S. 48 (1964), which sets forth\nfour requirements that the IRS must satisfy to enforce an\nadministrative summons. Under Powell, the IRS must\nestablish a prima facie case of good faith by showing that:\n(1) the underlying investigation is for a legitimate purpose,\n(2) the inquiry requested is relevant to that purpose, (3) the\ninformation sought is not already in the government’s\npossession, and (4) the IRS followed the administrative\nrequirements of the Internal Revenue Code (I.R.C.). Id.\nat 57–58. A court may quash a summons if the resisting\nparty disproves any of the four Powell elements or\nsuccessfully challenges the summons on “any appropriate\nground.” Id. at 58.\n\n Although the district court concluded that the\ngovernment had satisfied the first three steps of the Powell\n 6\n According to the National Taxpayer Advocate, an independent\nbody within the IRS, J.B. and P.B.’s experience receiving notice after a\nthird party has been contacted is becoming more common. In 2015, the\nIRS did not first ask the taxpayer for documents requested from a third\nparty in 22.8 percent of field examination cases and 11.1 percent of field\ncollection cases. 2015 Nat’l Taxpayer Advocate Ann. Rep. vol. 1, at\n128, https://taxpayeradvocate.irs.gov/reports/2015-annual-report-to-\ncongress. In June 2017, the National Taxpayer Advocate identified\n“third party contacts” as one of thirteen “areas of focus” needed to\nimprove taxpayer rights. 2018 Nat’l Taxpayer Advocate Objectives Rep.\nto Congress vol. 1, at 98–101, https://www.irs.gov/advocate/reports-to-\ncongress.\n\f J.B. V. UNITED STATES 9\n\ntest, it found the last step unsatisfied. The IRS, it concluded,\nhad not provided sufficient notice to J.B. and P.B. that it\nwould contact the California Supreme Court, in violation of\nI.R.C. § 7602(c)(1)’s requirement that the IRS provide\n“reasonable notice in advance” to the taxpayer. The district\ncourt rejected the IRS’s argument that IRS Publication 1\nprovided sufficient advance notice, and instead concluded\nthat “the advance notice procedure cannot be satisfied by the\ntransmission of a publication about the audit process\ngenerally.” It then instructed that “advance notice should be\nspecific to a particular third party,” reasoning that “the\nimplementing regulations contemplate notice for each\ncontact, not a generic publication’s reference that the IRS\nmay talk to third parties throughout the course of an\ninvestigation.”\n\n Because the district court’s decision conflicts with the\ndecisions of other district courts in our Circuit, see Estate of\nChaiken, 2016 WL 8255575, at 6, we must clarify I.R.C.\n§ 7602(c)(1)’s notice requirement for the Circuit. A district\ncourt’s ruling on a petition to quash an IRS summons is\ngenerally reviewed for clear error. Fortney v. United States,\n59 F.3d 117, 119 (9th Cir. 1995) (citing Tornay v. United\nStates, 840 F.2d 1424, 1426 (9th Cir. 1988)). But, here,\nwhere the district court “interpreted statutory law,” we\nreview de novo. Id. (citing United States v. Yacoubian,\n24 F.3d 1, 3 (9th Cir. 1994)).\n\n II.\n\n In connection with the IRS powers to review tax returns\nand liabilities, § 7602 of the Internal Revenue Code provides\nfor the examination of books and witnesses. However,\n§ 7602(c) specifically prohibits third-party contacts unless\nadvance reasonable notice is given to the taxpayer. It\nspecifically provides:\n\f10 J.B. V. UNITED STATES\n\n (c) Notice of contact of third parties.—\n\n (1) General notice.—An officer or\n employee of the Internal Revenue\n Service may not contact any person\n other than the taxpayer with respect to\n the determination or collection of the\n tax liability of such taxpayer without\n providing reasonable notice in\n advance to the taxpayer that contacts\n with persons other than the taxpayer\n may be made.\n\n (2) Notice of specific contacts.—The\n Secretary shall periodically provide\n to a taxpayer a record of persons\n contacted during such period by the\n Secretary with respect to the\n determination or collection of the tax\n liability of such taxpayer. Such\n record shall also be provided upon\n request of the taxpayer.\n\n (3) Exceptions.—This subsection shall\n not apply –\n\n (A) to any contact which the taxpayer\n has authorized;\n\n (B) if the Secretary determines for\n good cause shown that such\n notice would jeopardize\n collection of any tax or such\n notice may involve reprisal\n against any person; or\n\f J.B. V. UNITED STATES 11\n\n (C) with respect to any pending\n criminal investigation.\n\nI.R.C. § 7602(c). Section 7602(c) is structured in three parts:\na pre-contact notice requirement (§ 7602(c)(1)), a post-\ncontact notice requirement (§ 7602(c)(2)), and exceptions\n(§ 7602(c)(3)), 7 which apply to both the pre- and post-\ncontact notice requirements. Section 7602(c)(1), the pre-\ncontact notice requirement, is the provision at issue in this\nappeal.\n\n We must determine the meaning of the phrase\n“reasonable notice in advance.” We begin the task of\nstatutory interpretation with the text of the statute. See\nYokeno v. Sekiguchi, 754 F.3d 649, 653 (9th Cir. 2014).\n“Where the statute’s language is plain, the sole function of\nthe courts is to enforce it according to its terms.” Int’l Ass’n\nof Machinists & Aerospace Workers v. BF Goodrich\nAerospace Aerostructurers Grp., 387 F.3d 1046, 1051 (9th\nCir. 2004) (quoting United States v. Ron Pair Enters.,\n489 U.S. 235, 241 (1989)) (citation and internal quotation\nmarks omitted). “Only if this approach leaves or reveals\nambiguity may we turn to extrinsic evidence such as\nlegislative history.” Yokeno, 754 F.3d at 653; see also\nSatterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th\nCir. 2009) (“[O]ur inquiry begins with the statutory text, and\nends there as well if the text is unambiguous.” (citations\nomitted)).\n\n To start, the phrase “reasonable notice in advance” in\n§ 7602(c)(1) is not ambiguous. A term is ambiguous only if\nit is “susceptible to more than one reasonable interpretation,”\nGuido v. Mount Lemmon Fire Dist., 859 F.3d 1168, 1173\n\n 7\n No one here argues that any of § 7602(c)(3)’s exceptions applies.\n\f12 J.B. V. UNITED STATES\n\n(9th Cir. 2017) (quoting Alaska Wilderness League v. EPA,\n727 F.3d 934, 938 (9th Cir. 2013)), and “reasonable notice\nin advance” does not have more than one meaning. The\nSupreme Court has interpreted “notice” to mean “notice\nreasonably calculated, under all circumstances, to apprise\ninterested parties” and “afford them an opportunity to\npresent their objections.” See, e.g., Jones, 547 U.S. at 226.\nThe Court has used the same test to evaluate the adequacy of\nnotice in various circumstances. See, e.g., id. (notice due to\nproperty owner in advance of tax sale); Dusenbery v. United\nStates, 534 U.S. 161, 170 (2002) (notice due to owners of\nseized cash and automobiles); Greene v. Lindsey, 456 U.S.\n444 (1982) (notice due to tenants living in public housing);\nMullane, 339 U.S. at 314–15 (notice due to mortgagee);\naccord Low v. Trump University, 881 F.3d 1111, 1117–22\n(9th Cir. 2018) (sufficiency of class notice).\n\n Our interpretation of the phrase “reasonable notice in\nadvance” is supported by the “specific context in which that\nlanguage is used, and the broader context of the statute as a\nwhole.” Yates v. United States, 135 S. Ct. 1074, 1082 (2015)\n(quoting Robinson v. Shell Oil, Co., 519 U.S. 337, 341\n(1997)). I.R.C. § 7602 is an exception to the general rule\nthat the IRS must keep taxpayer records confidential. See\nI.R.C. § 6103. Section 7602(a) allows the IRS to disclose\ninformation “[f]or the purpose of ascertaining the\ncorrectness of any return, making a return where none has\nbeen made, determining the liability of any person . . . or\ncollecting any such liability,” I.R.C. § 7602(a), while\n§ 7602(c) protects the taxpayer from unnecessary third-party\ncontacts. As an exception to the general rule that taxpayer\nrecords are to be kept confidential, we construe § 7602(a)\nnarrowly in favor of the taxpayer and § 7602(c) broadly as a\nprotective measure. See A.H. Phillips, Inc. v. Walling,\n324 U.S. 490, 493 (1945).\n\f J.B. V. UNITED STATES 13\n\n I.R.C. § 7602(c)(1)’s notice requirement also\ncomplements other notice requirements in the Internal\nRevenue Code, including I.R.C. § 7609(a)(1), which\ninstructs the IRS to provide the taxpayer with a copy of any\nsummons it serves on a third party. While § 7609 gives the\ntaxpayer an opportunity to quash the summons in a federal\ndistrict court, § 7602(c)(1), in comparison, protects the\ntaxpayer’s reputational interest. It gives the taxpayer a\nmeaningful opportunity to resolve issues and volunteer\ninformation before the IRS seeks information from third\nparties, which would be unnecessary if the relevant\ninformation is provided by the taxpayer himself. See S. Rep.\nNo. 105-174, at 77 (1988), reprinted in 1998-3 C.B. 537, 613\n(1988); see also IRM 4.11.57.2(3) (May 26, 2017) (“The\nintent behind this statute is to provide the taxpayer, in most\ncases, with the opportunity to produce the information and\ndocuments the Service needs before the Service must obtain\nthe information from third parties.”); Third Party Contacts,\n67 Fed. Reg. 77,419, 77,419–20 (Dec. 18, 2002) (“[T]hese\nfinal regulations enable a taxpayer to come forward with\ninformation required by the IRS before third parties are\ncontacted.”).\n\n The exceptions to I.R.C. § 7602(c)(1)’s notice\nrequirement further demonstrate that Congress meant for the\nadvance notice provision to provide the taxpayer with a\nmeaningful opportunity to produce information to avoid\nthird-party contacts. I.R.C. § 7602(c)(3) waives the advance\nnotice requirement if (a) the taxpayer already authorized the\ncontact; (b) the Commissioner, with good cause, believes\nthat notice may jeopardize the IRS’s tax collection efforts or\nopen a third party to reprisal; or (c) there is a pending\ncriminal investigation against the taxpayer. I.R.C.\n§ 7602(c)(3). These exceptions demonstrate that Congress\nintended § 7602(c)(1)’s advance notice requirement to give\n\f14 J.B. V. UNITED STATES\n\nthe taxpayer a meaningful opportunity to respond to the\nIRS’s request; it is only if the taxpayer knows who the IRS\nplans to contact or the documents that the IRS plans to\nrequest that the taxpayer may authorize the contact, or more\ncynically, impede the contact by jeopardizing tax collection\nefforts, retaliating against third parties, or interfering in a\npending criminal investigation. Publication 1, alone, does\nnot offer this level of specificity. It simply tells the taxpayer\nthat the IRS may “sometimes talk with other persons if we\nneed information that you have been unable to provide . . .”;\nit does not reference specific documents or people, or even\ncategories of documents or people. When the IRS uses\nPublication 1 as it was used here, mailed with an\nintroductory letter and divorced from any specific request for\ndocuments, we do not think it reasonable for the IRS to fear\nthat a person who received the publication would have\nenough information to spoil a criminal investigation or\nretaliate against a potential third-party source.\n\n The IRS counters that I.R.C. § 7602(c)(1) cannot require\nthe IRS to provide advance notice “specific to a particular\nthird party,” as the district court held, because that would\nrender superfluous the post-contact notice provision,\n§ 7602(c)(2), which requires the IRS to provide the taxpayer\nwith a “record of persons contacted” after the contact is\nmade. This argument fails for two reasons. First, we do not\nrequire the IRS to provide the taxpayer with a list of the\npeople it may contact in advance. Rather, we require what\nthe statute requires: “reasonable notice in advance.” I.R.C.\n§ 7602(c)(1). What is reasonable depends on the facts.\nSecond, even if we required the IRS to provide the taxpayer\nwith a list of people it may contact in advance, the IRS’s\nargument nonetheless fails because the group of people\ncovered by the advance notice provision, I.R.C.\n§ 7602(c)(1), is larger than the group of people covered by\n\f J.B. V. UNITED STATES 15\n\nthe post-contact notice provision, I.R.C. § 7602(c)(2). The\nadvance notice provision covers every third-party contact\nthat the IRS “may” make, while the post-contact notice\nprovision covers only “persons contacted” and excludes\nevery third-party contact where the IRS sent a copy of the\nthird-party summons to the taxpayer. Cf. I.R.C. § 7602(c)(1)\nwith I.R.C. § 7602(c)(2); see also Treas. Reg. § 301.7602-\n2(e)(4), Ex. 4 (explaining that “providing a copy of the third-\nparty summons to the taxpayer pursuant to section 7609\nsatisfies the post-contact recording and reporting\nrequirement”). In J.B. and P.B.’s case, for example, the\nadvance notice provision would have required the IRS to\nnotify J.B. and P.B. before contacting the California\nSupreme Court. But, because J.B. and P.B. received a copy\nof the summons that the IRS ultimately sent to the California\nSupreme Court, the IRS would not need to include the\nCalifornia Supreme Court on a list of “persons contacted” if\nJ.B. and P.B. later requested such a list from the IRS. See\nTreas. Reg. § 301.7602-2(e)(4), Ex. 4. Because § 7602(c)(2)\ncovers a different group of contacts, serves a different\npurpose than § 7602(c)(1), and has its own place in a\ncomprehensive statutory scheme, interpreting § 7602(c)(1)\nas we do here does not render § 7602(c)(2) superfluous. See\nTRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (explaining\nthat it is a “cardinal principle of statutory construction” that\n“a statute ought, upon the whole, to be so construed that, if\nit can be prevented, no clause, sentence, or word shall be\nsuperfluous, void, or insignificant” (quoting Duncan v.\nWalker, 533 U.S. 167, 174 (2001) (internal quotation marks\nomitted))).\n\n Section 7602(c)(1)’s language could become ambiguous\nonly if we consider the subsection titles, as the IRS urges us\nto do. The subsection title for § 7602(c)(1) is “General\nnotice” and the subsection title for § 7602(c)(2) is “Notice of\n\f16 J.B. V. UNITED STATES\n\nspecific contacts.” We are unpersuaded, however, that the\nsubsection titles render the actual text of the statute\nambiguous. Not only are the titles themselves unclear, but\nthey also contradict the plain meaning of the statute’s text,\nas well as the specific context in which that language is used\nand the broader context of the statute. Because the statutory\ntext is clear, there is no need to rely on ambiguous subsection\nheadings or other evidence of legislative intent. See Or.\nPublic Utility Comm’n v. ICC, 979 F.2d 778, 780 (9th Cir.\n1992) (“[While] [t]he title of a statute can be used to resolved\n[sic] ambiguity,” “the title cannot control the plain meaning\nof a statute.” (citing Bhd. of R.R. Trainmen v. Baltimore\nO.R.R. Co., 331 U.S. 519, 528–29 (1947))); see also Merit\nMgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893\n(2018) (“Although section headings cannot limit the plain\nmeaning of a statutory text, ‘they supply cues’ as to what\nCongress intended.” (internal citations omitted)).\n\n Even if we were to consider legislative intent, however,\nwe would find ample support for the proposition that\nCongress intended that the IRS provide notice reasonably\ncalculated to apprise taxpayers that the IRS may contact\nthird parties. Congress added the third-party contact notice\nrequirement to the I.R.C. as part of the Internal Revenue\nService Restructuring and Reform Act of 1998 (1998\nRestructuring Act), Pub. L. No. 105-206, 112 Stat. 685, 757–\n58. The notice requirement’s proponents were the members\nof the Senate Finance Committee, which adopted an\namendment that prohibited the IRS from contacting “any\nperson other than the taxpayer” unless the IRS provided\n“reasonable notice to the taxpayer that such contact will be\nmade.” H.R. 2676, 105th Cong. § 3417 (as passed by Senate\nMay 7, 1998). The Committee recognized that taxpayer\nprotections needed to be robust because “[s]uch contacts\nmay have a chilling effect on the taxpayer’s business and\n\f J.B. V. UNITED STATES 17\n\ncould damage the taxpayer’s reputation in the community.”\nS. Rep. No. 105-174, at 77 (1998), reprinted in 1998-3 C.B.\n537, 613 (1998).\n\n The joint Conference Committee that considered the\ndifferent versions of the House and Senate bills preserved\nthe Senate Finance Committee’s amendment, but bifurcated\nit into an advance notice and post-contact notice\nrequirement. The Conference Committee clarified that “in\ngeneral,” the IRS could provide advance notice to the\ntaxpayer “as part of an existing IRS notice provided to\ntaxpayers,” 8 but the Conference Committee did not refer to\nPublication 1 by name. H.R. Conf. Rep. No. 105-599, at 277\n(1998).\n\n The IRS insists that the “existing IRS notice” is\nPublication 1, but in July 1998, at the time Congress passed\nthe Restructuring Act, the IRS had not yet determined what\nmethod it would use to notify taxpayers of potential third-\nparty contacts. See Status of IRS Reform: Hearing Before\nthe S. Fin. Comm., 106th Cong. 69 (Feb. 2, 2000). Tellingly,\nCongress knew how to refer to Publication 1 by name in the\n1998 Restructuring Act when it wished to do so. Congress\nspecifically referred to Publication 1 three times in the 1998\nRestructuring Act to, among other things, instruct the\nTreasury Department to notify taxpayers of their rights in\ninterviews with the IRS. Pub. L. No. 105-206, §§ 1102,\n3501–3503; 112 Stat. 685, 703, 770, 771. However, it did\nnot refer to Publication 1 by name in § 7602(c).\n\n 8\n The IRS contorts this statement in the Conference Committee\nreport to support its claim that “the advance notice requirement\ncontemplates merely general notice.” But, other than the headers in the\nstatute, the Conference Committee report makes no mention of general\nnotice.\n\f18 J.B. V. UNITED STATES\n\n The timeline for the development of Publication 1 and\nrelated forms of notice further illustrates the implausibility\nof the IRS’s insistence that Publication 1 provides\n“reasonable notice in advance” in all circumstances. After\nthe 1998 Restructuring Act, IRS staff worked with Senate\nFinance Committee members, all twenty of whom had voted\nin favor of the Restructuring Act, to implement § 7602(c)(1)\nin a way that “carries out the intent of the legislation.” 9\nS. Rep. No. 107-19, at 46, 51 (2001). The IRS first issued\nNotice 1219, 10 followed by Letter 3164, an even more\nprotective notice. 11 See Taxpayer Advocate Service, 2015\nAnnual Report to Congress, Vol. 1, 127 n.23. In 1999, when\nit used Notice 1219, the IRM cautioned that “providing the\ntaxpayer with Notice 1219 alone does not constitute\n\n 9\n The IRS initially prepared a “broad” notice but did not use it after\nSenator Christopher Bond, chairman of the Senate Committee on Small\nBusiness and Entrepreneurship, wrote to IRS Commissioner Charles\nRossotti to tell him that the IRS was “incorrectly implementing the new\ntaxpayer protection.” S. Rep. 107-19, at 58 (quoting February 25, 1999\nletter).\n 10\n Notice 1219 stated that the IRS “sometimes talk[s] with other\npersons when [it needs] information that the taxpayer has been unable to\nprovide, or to verify information [the IRS has] received. This notice is\nprovided to tell you that [the IRS] may contact other persons, such as a\nneighbor, bank, employer or employees, and will generally need to tell\nthem limited information, such as your name. The law prohibits [the\nIRS] from disclosing any more information than is necessary to obtain\nor verify the information [it is] seeking. [The IRS’s] need to contact\nother persons may continue as long as there is activity on this matter. If\n[the IRS contacts] other persons, you have the right to request a list of\nthose contacted.” Notice 1219-B (August 2005).\n 11\n “There are over twenty versions of the general Letter 3164,\navailable to meet specific functional requirements.” IRM 25.27.1.3.1\n(October 19, 2017).\n\f J.B. V. UNITED STATES 19\n\nadequate notification of third-party contacts. It must be\nattached to another letter that contains the required\ninformation found in Letter 3164.” IRM 4.10.1.6.12.2.1(5)\n(May 14, 1999); see also IRM 13.1.10.2.3(1) (August 21,\n2000) (“Under [§ 7602(c)] you must provide taxpayers with\nprior notification that third parties may be contacted during\nthe determination or collection of that specific taxpayer’s\nfederal tax liability.” (emphasis added)). When the IRS\nstarted using Letter 3164 more regularly, 12 it developed\nmore than twenty versions of Letter 3164 to meet “specific\nfunctional requirements.” IRM 25.27.1.3.1 (Oct. 19, 2017).\nSome versions of the letter notify the taxpayer, specifically,\nthat the IRS would contact third parties because the taxpayer\nhad not provided certain documents requested in an audit.13\nSee IRM 4.11.57.4.1.1 (Dec. 20, 2011). The IRS manual\ninstructs IRS agents to prepare the appropriate letter, 14\ninclude the IRS employee’s identification number and\ntelephone number, and deliver the letter to the taxpayer.\nIRM 25.27.1.3.1(6) (Oct. 19, 2017).\n\n Although they do not say so explicitly, the Treasury\nDepartment regulations also support an interpretation of\n“reasonable notice” that requires meaningful notice to the\n\n 12\n It is unclear from the record whether the IRS continues to use\nLetter 3164, or its various versions, today.\n 13\n For example, Letter 3164-G (no longer in use per IRM\n4.11.57.4.1.1 (Dec. 20, 2011)) states “we previously requested the\nfollowing information from you. . . . Since you have been unable to\nprovide the requested information, we are writing to tell you that we may\ncontact other persons to obtain this and any related information.”\n 14\n The manual indicates that, “[i]f the tax liability is due to a joint\nreturn, each spouse must receive a separate Letter 3164.” IRM\n25.27.1.3.1(6)(a) (Oct. 19, 2017).\n\f20 J.B. V. UNITED STATES\n\ntaxpayer. See Treas. Reg. § 301.7602-2 (2002). The\nregulations state that “the pre-contact notice may be given\neither orally or in writing,” and if written notice is given, it\nmay be given by mail, in person, by delivery to the\ntaxpayer’s address, or by confirming receipt by the taxpayer.\nId. § 301.7602-2(d)(i)–(iv). And, contrary to the IRS’s\nposition in this litigation, the regulations nowhere suggest\nthat the IRS satisfies its pre-contact notice requirement by\nsimply mailing Publication 1 to the taxpayer. See Thompson\nv. United States, No. CIV.A. H-08-1277, 2008 WL 4279474,\nat 6 (S.D. Tex. Sept. 11, 2008) (“These documents are\nvarious methods of providing the ‘reasonable advance\nnotice’ required by Section 7602(c). No method is specified\nin the Code.”).\n\n Citing to out-of-circuit district court decisions, the IRS\nnonetheless insists that the district court’s decision in this\ncase is an outlier because every court to have considered the\nissue has held that “IRS Publication 1 satisfied the pre-\ncontact notice requirement.” But while courts have\ngenerally approved of Publication 1, see, e.g., Gandrup v.\nUnited States, No. MC 14-123-SLR, 2014 WL 5861719, at\n2 (D. Del. Nov. 12, 2014); Gangi v. United States, 2 F.\nSupp. 3d 12, 21 (D. Mass. 2014), several courts have\nrecognized that § 7602(c)(1) requires a context-dependent\ninquiry, and have upheld Publication 1 only after evaluating\nthe totality of the circumstances to determine whether the\ntaxpayer received reasonable notice, see, e.g., Clearwater\nConsulting Concepts, LLLP v. United States, No. CV 2007-\n33, 2010 WL 2392107, at 7 (D.V.I. Mar. 31, 2010);\nThompson, 2008 WL 4279474, at *5–8.\n\n Nor does our decision conflict with the Second Circuit’s\nunpublished summary order in Highland Capital\nManagement L.P. v. United States, 626 F. App’x 324 (2d\n\f J.B. V. UNITED STATES 21\n\nCir. 2015), representing the sole other instance of a circuit\ncourt’s grappling with § 7602(c)(1)’s advance notice\nrequirement. Rather than endorse Publication 1, Highland\nCapital embraces a “totality of the circumstances” approach\nto determine whether the IRS has complied with all\nadministrative requirements. Id. at 327. The Second Circuit\nreasoned, as we do, that § 7602(c)(1) does not require\nseparate notice before each third-party contact or advance\nnotice of the specific documents that will be requested, but\nit does require “reasonable notice in advance,” and whether\nnotice was reasonable is factually dependent. Id. Moreover,\nin Highland Capital, the IRS argued that it had satisfied\n§ 7602(c)(1) in more than one way—by sending Publication\n1 in addition to orally notifying the taxpayer during an in-\nperson meeting—so the Second Circuit expressly did not\npass judgment on the adequacy of Publication 1 as a stand-\nalone adequate notification tool. Id. at 326–27 (“We\nconclude, as the District Court did, that regardless of\nwhether Publication 1 satisfies § 7602(c)(1), the oral notice\nprovided to Highland Capital during the January 2014\nmeeting was sufficient to satisfy that statutory\nrequirement.”).\n\n We understand that one result of adopting a context-\nspecific rule may be to make it more difficult for IRS\nofficers, and district courts, to determine whether\n§ 7602(c)(1)’s advance notice requirement is satisfied in any\ngiven case. But, to the extent such an administrability\nproblem develops, the responsibility lies with Congress, not\nthe courts. We cannot ignore the text of a statute that hinges\nthe adequacy of notice on a determination of reasonableness.\nNor can we ignore the congressional mandate to provide\ntaxpayers faced with a potential third-party summons with a\nmeaningful opportunity to respond with the relevant\ninformation themselves so as to maintain their privacy and\n\f22 J.B. V. UNITED STATES\n\navoid the potential embarrassment of IRS contact with third\nparties, such as their employers.\n\n We therefore hold that Publication 1 did not provide the\nJ.B. and P.B. with reasonable advance notice. 15 A\nreasonable notice must provide the taxpayer with a\nmeaningful opportunity to volunteer records on his own, so\nthat third-party contacts may be avoided if the taxpayer\ncomplies with the IRS’s demand.\n\n III.\n\n The district court concluded that the IRS had failed to\nsatisfy its “administrative duty” of giving J.B. and P.B. a\nmeaningful opportunity to respond before contacting the\nCalifornia Supreme Court, as required by § 7602(c)(1). We\nagree.\n\n Drawing on our case law in this area, we conclude that\nthe IRS does not satisfy the pre-contact notice requirement,\n§ 7602(c)(1), unless it provides notice reasonably calculated,\nunder all relevant circumstances, to apprise interested parties\nof the possibility that the IRS may contact third parties, and\nthat affords interested parties a meaningful opportunity to\nresolve issues and volunteer information before those third-\nparty contacts are made. See Jones, 547 U.S. at 226. This\nstandard requires a balancing of the “interest of the State” in\n\n 15\n Although we limit our holding to the facts of this case, we are\ndoubtful that Publication 1 alone will ever suffice to provide reasonable\nnotice in advance to the taxpayer, as the statute requires. We think it\nunlikely that the broad and colloquial language in the “Third-Party\nContacts” paragraph of Publication 1, which states that the IRS may\n“sometimes talk with other persons,” gives the taxpayer reasonable\nadvance notice that the IRS intends to subpoena, under threat of penalty,\nthird-party documents.\n\f J.B. V. UNITED STATES 23\n\nadministering an effective auditing system against “the\nindividual interest” in receiving notice of the potential third-\nparty contact and an opportunity to respond. Mullane,\n339 U.S. at 314. The government must consider “unique\ninformation about an intended recipient regardless of\nwhether a statutory scheme is reasonably calculated to\nprovide notice in the ordinary case.” Jones, 547 U.S. at 230;\nsee also Robinson v. Hanrahan, 409 U.S. 38, 40 (1972) (per\ncuriam); Covey v. Town of Somers, 351 U.S. 141, 146–47\n(1956). And if the government receives information that the\nnotice was not received, the government must take\nadditional reasonable steps to ensure that it provides notice.\nJones, 547 U.S. at 234.\n\n In this case, the sole notice that the government provided\nJ.B. and P.B. that it might contact the California Supreme\nCourt is Publication 1. The IRS sent J.B. and P.B.\nPublication 1 as part of its initial, introductory letter to the\ncouple explaining that they had been selected for an audit;\nan audit the couple sought to stop. The Publication did not\naccompany a specific request for documents, nor is there any\nevidence that the IRS revisited the notice later in the audit\nwhen it knew that J.B. and P.B. had requested an exemption\nfrom the research audit and had not provided documents for\nthe audit. More than two years elapsed between when the\nIRS sent Publication 1 to J.B. and P.B., and when the IRS\nsubpoenaed the billing records and invoices from the\nCalifornia Supreme Court. We do not think that an agency\nthat actually desired to inform a taxpayer of an impending\nthird-party contact would consider Publication 1 adequate\nnotice in these circumstances.\n\n Nothing about the audit required the government to\nmove quickly. The IRS issued the summons to the\nCalifornia Supreme Court as part of its National Research\n\f24 J.B. V. UNITED STATES\n\nProgram audit, not an audit in the normal course. The\nresearch program is designed to help the IRS improve its tax\ncollection system, but unlike an audit in the normal course\nwhere the subjects are selected because of red flags in their\ntax returns, the subjects of a research program audit are\nrandomly selected, without any reason to believe that they\nare deficient on their taxes. The IRS had no reason to believe\nthat J.B. and P.B. might evade its review, hide assets, or\nabscond. Nor was the California Supreme Court going\nanywhere soon.\n\n Indeed, with a research audit, where the taxpayer is\noffering information to help the United States in its tax\ncollection efforts, the IRS has every reason to proceed\ncautiously, ensuring that the taxpayer has adequate notice\nthat the IRS may contact third parties and that the taxpayer’s\nreputational interests are protected. The lack of urgency is\nfurther reflected in the IRS’s willingness to wait two years\nbetween requesting the documents from J.B. and P.B. in\nSeptember 2013 and issuing the summons to the California\nSupreme Court in September 2015.\n\n Moreover, the IRS should have known that it was\nrequesting information from a particularly sensitive source.\nThe IRS sent the summons to J.B.’s employer, not a remote\nthird party like a bank or financial institution. A taxpayer’s\nreputational interests is heightened when the IRS requests\ninformation from an employer, which knows the taxpayer\nintimately and upon which the taxpayer relies for decisions\nabout hiring and firing, and promotion. And, the IRS did not\njust request this information from any employer. The IRS\nsought billing records and invoices for J.B.’s work\nrepresenting capital defendants for the state government.\nThe IRS should have known that these materials were\npotentially covered by the attorney-client privilege and other\n\f J.B. V. UNITED STATES 25\n\nlitigation-related privileges, and could have revealed J.B.’s\nlitigation strategy representing persons on death row.\nIssuing the summons without specifically notifying J.B. and\nP.B. is rendered even more unnecessary because the billing\nrecords and invoices that the IRS requested are exactly the\ntype of records that the IRS should have expected J.B. to\nhave in his possession, and to have readily been able to\nprovide once the dispute as to whether J.B. and P.B. should\nhave remained in the research audit was resolved. In fact,\nfederal law requires J.B. and P.B. to maintain exactly those\nrecords. See I.R.C. § 6001 (requiring taxpayers to maintain\nincome records).\n\n We think there were several reasonable additional steps\nthat the IRS could have taken to notify J.B. and P.B. before\nturning to the California Supreme Court. See Jones,\n547 U.S. at 234. The ongoing litigation between J.B. and\nP.B., and the IRS, meant that IRS lawyers had opportunities\nto notify the couple that, despite the litigation, it would begin\ncontacting third parties to collect information that J.B. and\nP.B. continued to withhold. Another reasonable step would\nhave been for the IRS to, once again, renew its request for\ndocuments, and tell J.B. and P.B. that, if the documents were\nnot provided, it would begin reaching out to third parties.\nBecause more than two years had elapsed between the date\nthe IRS sent Publication 1 to the couple, and the date the IRS\nissued its summons to the California Supreme Court, it is not\nunreasonable to expect the IRS to renew its request for\ndocuments and to remind J.B. and P.B. that if they did not\ncomply, the IRS would begin contacting third parties. Other\nreasonable notice measures, directed at the possibility that\nJ.B. and P.B. did not understand or remember the third-party\ncontacts notice in Publication 1, would have been to re-mail\nPublication 1, call the taxpayer, or issue a more tailored letter\nindicating that the IRS would begin contacting third parties.\n\f26 J.B. V. UNITED STATES\n\n But, because the IRS took no additional steps to notify\nJ.B. and P.B. that it would be sending a summons to the\nCalifornia Supreme Court, we affirm the district court’s\nconclusion that issuing Publication 1 two years before the\nthird-party contact did not satisfy I.R.C. § 7602(c)(1)’s\n“reasonable notice in advance” requirement in this instance.\n\n IV.\n\n The IRS must comply with its statutory obligation to\nprovide reasonable notice in advance of contacting third\nparties. Courts are not in the position to prescribe the exact\nform of notice that is reasonable in every circumstance.\nUnder the circumstances here, however, reliance on\nPublication 1 was plainly unreasonable, and there are no\ndoubt numerous other circumstances where the IRS needs to\ntake further steps to provide the reasonable and meaningful\nnotice Congress mandated. When the IRS seeks information\nfrom an employer of a party with whom it is currently in\nlitigation and much of the information sought is covered by\ncommon law and state-recognized privileges, additional\nreasonable measures must be taken to provide meaningful\nnotice and an opportunity to respond, in order to avert the\npotential third-party contact.\n\n The district court’s order quashing the 2011 summons to\nthe California Supreme Court is therefore AFFIRMED.\n\fJ.B. V. UNITED STATES 27\n\n APPENDIX A\n\f28 J.B. V. UNITED STATES", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371189/", "author_raw": "WARDLAW, Circuit Judge:"}]}	KIM MCLANE WARDLAW	JACQUELINE H NGUYEN	SOLOMON OLIVER JR	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593936/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,937		Delphine Arrey v. William Barr	2019-02-26	16-73373	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, * District Judge.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n DELPHINE A. ARREY, AKA Arrey No. 16-73373\n Delphine Ayamba,\n Petitioner, Agency No.\n A208-595-387\n v.\n\n WILLIAM P. BARR, Attorney General, OPINION\n Respondent.\n\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed February 26, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, * District Judge.\n\n Opinion by Judge Gould\n\n\n\n\n \n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n\f2 ARREY V. BARR\n\n SUMMARY \n\n\n Immigration\n\n The panel granted in part a petition for review of the\nBoard of Immigration Appeals’ decision affirming an\nimmigration judge’s denial of asylum, withholding of\nremoval, and protection under the Convention Against\nTorture to a citizen of Cameroon, and remanded.\n\n The panel rejected petitioner’s contention that she was\ndeprived of her due process right to a full and fair hearing\nbased on the denial of her right to retained counsel and an\nunbiased fact finder. The panel held that the IJ in this case\nprovided petitioner reasonable time to locate an attorney,\nwhere the IJ provided several continuances so she could do\nso, warned her repeatedly that he would not grant further\ncontinuances, and attempted to call her attorney when he\nfailed to appear on the day of her merits hearing. The panel\nalso held that although the IJ was rude and harsh with\npetitioner, petitioner failed to establish that the IJ’s conduct\nprejudiced her, where the IJ held a complete hearing and\nmade a thorough decision that fully examined the underlying\nfactual matters, and any potential prejudice caused by the\nIJ’s questionable adverse credibility determination was\ncured by the Board’s subsequent decision assuming the\ncredibility of petitioner’s testimony in full.\n\n The panel held that the Board committed three legal\nerrors in its application of the firm resettlement bar, which\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f ARREY V. BARR 3\n\nprecludes asylum relief if an applicant was firmly resettled\nin another country prior to arriving in the United States.\nFirst, the panel held that the Board erred by failing to\nconsider whether the conditions of petitioner’s offer of\nresettlement in South Africa were too restricted for her to be\nfirmly resettled. Second, the panel held that the Board erred\nby applying the firm resettlement rule not as a mandatory bar\nto petitioner’s asylum claim, but instead as a limitation on\nthe evidence the Board considered in support of her claim\nfor relief from removal to Cameroon, thus causing the Board\nto improperly ignore evidence of the abuse petitioner\nsuffered in Cameroon before fleeing to South Africa, as well\nas evidence of the nature of her relationship with her abuser.\nThird, the panel held that the Board erred by applying the\nfirm resettlement bar to petitioner’s withholding of removal\nclaim, which is not subject to the firm resettlement bar.\n\n Turning to petitioner’s CAT claim, the panel held that\nsubstantial evidence did not support the Board’s\ndetermination that petitioner could avoid future harm\nthrough internal relocation in Cameroon.\n\n The panel remanded petitioner’s asylum, withholding,\nand CAT claims for further proceedings consistent with its\nopinion.\n\f4 ARREY V. BARR\n\n COUNSEL\n\nRonald D. Richey (argued), Law Offices of Ronald Richey,\nRockville, Maryland, for Petitioner.\n\nVictoria M. Braga (argued), Trial Attorney; Cindy S. Ferrier,\nAssistant Director; Office of Immigration Litigation, Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Respondent\n\n\n OPINION\n\nGOULD, Circuit Judge:\n\n Petitioner Delphine Arrey petitions for review of the\nBoard of Immigration Appeals’ (“BIA” or “Board”) decision\ndismissing her appeal of an immigration judge’s (“IJ”)\ndenial of her application for asylum, withholding of removal,\nand relief under the Convention Against Torture (“CAT”).\nWe conclude that the IJ did not deny Arrey her due process\nrights to counsel and an unbiased factfinder. As to Arrey’s\nasylum and withholding of removal claims, we conclude that\nthe Board erred as a matter of law in its analysis and\napplication of the “firm resettlement” rule. As to Arrey’s\nclaim for relief under CAT, we conclude that substantial\nevidence does not support the Board’s determination that\nArrey could safely relocate in another area of Cameroon.\nWe grant the petition in part and remand for reconsideration\nof Arrey’s claims consistent with our opinion.\n\f ARREY V. BARR 5\n\n I\n\n A\n\n Arrey is a native and citizen of Cameroon. In October\n2015, she used her Cameroonian passport to obtain a\nMexican visa in Nigeria. After traveling to Mexico, she\napplied for admission to the United States at a port of entry\nin California. Because her passport had been taken from her\nin Mexico, she did not possess or present a valid passport or\nentry document. The Department of Homeland Security\n(“DHS”) personally served her with a Notice to Appear,\ncharging that Arrey was removable from the United States\nas an immigrant who, at the time of application for\nadmission, did not possess a valid entry document or\npassport. The Notice ordered Arrey to appear before an IJ\nto show why she should not be removed from the United\nStates.\n\n Arrey first appeared before an IJ on December 3, 2015.\nArrey said that English was her best language. The IJ\nexplained the process and informed Arrey of her right to hire\nan attorney, her appellate rights, and the consequences of\nremoval. Arrey said that she was not ready to proceed, so\nthe IJ continued her case for another four weeks. The IJ also\ntold Arrey that if she appeared at the next hearing without an\nattorney, or with a recently-hired attorney who was not ready\nto proceed, the IJ would nonetheless proceed with her case.\n\n Arrey’s second hearing was held on December 30, 2015.\nArrey told the IJ that she had not found an attorney, though\nshe had “tried to get [her] family friends out there to get me\none.” The IJ questioned whether Arrey had taken “any\nconcrete action” to get an attorney. He told her that “the\nquestions aren’t that hard really” and asked her whether she\nwould “have the attorney here in a week.” Arrey responded\n\f6 ARREY V. BARR\n\n“a week is too early.” The IJ then found that Arrey had not\nestablished good cause for a continuance and proceeded to\ntake the pleadings. Based on Arrey’s admissions, the IJ\nsustained the charge of removability. On DHS’s\nrecommendation, the IJ designated Cameroon as the country\nof removal. After Arrey expressed a fear of harm or\npersecution in Cameroon, the IJ told her to fill out Form I-\n589 and suggested that she could also look for an attorney\nbefore her next hearing.\n\n After filing her asylum application, Arrey appeared for\nher third hearing on January 27, 2016. There, the IJ\nscheduled a March 28 hearing to address the merits of her\napplications for relief and protection. The IJ told Arrey, “if\nyou show up [at the next hearing] and tell me you’re not\nready . . . I’m going to finish your case on that day with an\norder of removal.” Arrey stated that she understood.\n\n At the March 28 hearing, the DHS attorney told the IJ\nthat Attorney Ronald Richey had recently filed a motion for\ncontinuance on Arrey’s behalf. The IJ asked Arrey if she\nwas seeking a continuance in her case, and she said that she\nwas. The IJ asked her “why [she] did exactly specifically\nwhat I told you exactly not to do?” noting that she had had\ntwo months since her January hearing to prepare. He\nreminded her that “the only way you can have a hearing is to\nsteal a hearing from someone else, and that there are people\nthere who are threatening suicide because they can’t get\nhearing dates.”\n\n The IJ’s expressed hostility continued: When Arrey\nasked for “another short time” because her attorney was not\navailable, the IJ told her that he considered her actions\n“inconsiderate and extremely selfish.” He noted that,\naccording to the motion for continuance, Arrey had only\ncontacted her retained attorney “basically less than a week”\n\f ARREY V. BARR 7\n\nbefore the present hearing. The IJ found “no good cause for\na continuance” and made a “finding of dilatory tactics based\non the advisal that [he] gave [Arrey] previously.”\n\n Notwithstanding the IJ’s finding of dilatory tactics, the\nIJ continued Arrey’s case for another week, to April 6. He\nadvised her that “no continuance is going to be granted on\nApril 6, 2016, [and if she was] not ready on that date, [he\nwould] finish [her] case with an order of removal,” whether\nor not her attorney was present.\n\n One day before the rescheduled merits hearing, the\nImmigration Court received from Richey a motion to appear\ntelephonically, or in the alternative to withdraw as counsel,\nand a list of intended evidence. A note on these filings\nindicates that the IJ did not receive the filings before the\nApril 6 hearing, but the record does not indicate why.\n\n Arrey’s final hearing occurred on April 6. The IJ asked\nwhether Arrey was ready to go forward, and she said “my\nattorney said he will come, he could call you through the\nhearings today.” The IJ told her—incorrectly—that Richey\n“didn’t put in any motion for a telephonic hearing.” The IJ\nasked if Arrey wanted to proceed. Arrey responded, “Your\nHonor, no.” The IJ further asked, “are you going to be\npresenting any evidence today ma’am?,” and she said, “Your\nHonor, I don’t know. [Richey] might be on the line because\nhe told me he will have to talk to, he has to be on the line to\nknow−.” The IJ told her “[w]e can go forward today by\nyourself or I can just finish your case with an order of\nremoval, and then, you know, you can talk to your attorney\nabout it later.” At that, Arrey told the IJ: “Your Honor, I\nthink you are the good one to take the decision.”\n\n The IJ then reminded Arrey about the warnings he had\npreviously given her, and again asked “do you want to\n\f8 ARREY V. BARR\n\npresent a case today?” Arrey responded, “Your Honor, I’m\nnot ready.” The IJ “[found] [Arrey’s] application [for\nasylum] has been abandoned,” but he continued to ask Arrey\nwhether she wanted to proceed.\n\n The IJ explained that there was no way that Richey could\nappear by telephone for the merits hearing, but the IJ\nnevertheless agreed to call Richey. The person who\nanswered the phone indicated that “Mr. Richey is not in right\nnow. He should be in any second though.” The IJ ended the\ncall and asked Arrey what she wanted to do. He told her that\nher choices were to “go forward . . . by [herself]” or accept\nan order of removal. The transcript indicates that Arrey\nresponded “I can [indiscernible].” The IJ then proceeded to\nask for documentary evidence from both Arrey and the DHS\nattorney, to place Arrey under oath, to ask her questions\nabout her claims for relief and protection, and to allow the\nDHS attorney to cross-examine her. What follows is a\nsummary of Arrey’s testimony, which the Board credited as\ntrue.\n\n B\n\n Arrey testified that she was born in 1976 in Cameroon\nand lived with her family in the village of Nchang until she\nwas twelve years old. Female genital mutilation was\npracticed in Nchang, but the practice was prohibited in\nArrey’s Roman Catholic religion. To protect Arrey, her\nfamily arranged for her to stay with friends, Jean Thomas\nand his wife, in the city of Victoria, Cameroon.\n\n Arrey lived in Thomas’s home for twenty-six years.\nDuring that time, Thomas sexually and physically abused\nher. He refused to send her to school, beat her, forced her to\nhave sex with him, impregnated her, threatened to kill her,\n\f ARREY V. BARR 9\n\nand told her that her “family would never see her corpse” if\nshe told anyone that he had impregnated her.\n\n On one occasion, Arrey was hospitalized as a result of\nThomas’s abuse. She then told hospital staff that she was\n“beaten at home,” but she did not identify Thomas as her\nabuser, and his identity was not reported to police. After\nArrey was released from the hospital, she went to a friend’s\nhome. Thomas found her there because he knew most of her\nfriends and where they lived. Thomas brought her home and\nproceeded to viciously beat her with a whip and cables. He\ntold her that she had no right to leave his home and stay\nelsewhere.\n\n When Arrey was twenty-six, she became pregnant with\nThomas’s child. Thomas did not want his wife to discover\nthat he was the father, so he threatened to kill Arrey unless\nshe accused one of her friends of impregnating her. Thomas\nalso threatened the friend, who accepted responsibility.\nArrey believed that Thomas had abused and threatened her\nbecause, against Arrey’s wishes and her Catholic faith, he\nwanted to “marry her like a second wife.”\n\n Thomas sometimes brought Arrey to the local police\nstation and accused her of stealing and “do[ing] bad things”\nin his house. According to Arrey, Thomas was able to\nconvince the police to detain her because he was an\ninfluential businessman in the community. Arrey’s fear of\nthe police and Thomas prevented her from reporting\nThomas’s abuse.\n\n Arrey stayed with Thomas despite the abuse, because she\nbelieved he protected her from other “assaults in the\ncommunity” and because her parents could not support her.\nAlthough she occasionally stayed with friends, her friends\n\f10 ARREY V. BARR\n\ndid not have enough room in their homes to allow her to live\nwith them.\n\n Arrey did not tell her friends about Thomas’s sexual\nabuse, but she told them that he physically abused her.\nEventually, Arrey’s friends helped her flee from Cameroon\nand relocate to South Africa. She arrived in South Africa in\n2007, was granted refugee status, and remained there for\nseven years. While Arrey lived in South Africa, Thomas\nsearched for her. He attempted to kidnap their two children\nfrom the home of Arrey’s friend, where they had been living\nsince Arrey left Cameroon.\n\n Arrey left South Africa in 2014 and returned to\nCameroon following two incidents. First, in 2011, she was\nrobbed and assaulted while walking home from work. Her\nassailants stabbed her in the leg and left her bleeding in the\nstreet. She spent three months recovering from her injury.\n\n Second, in 2014, her brother was shot and killed in South\nAfrica. Arrey explained that in her village in Cameroon,\nwhen a person dies, it is customary to bury him “in his land.”\nAlthough she feared returning to Cameroon, she returned\nwith her brother’s body, using community donations to pay\nfor the trip. Arrey believed that she was the only person who\ncould return her brother’s body because her parents died in\n2008.\n\n To avoid being abused by Thomas upon her return, Arrey\nhid with her church community in Douala. But Thomas\nknew that she had returned; her friends and family members\ntold him so after he threatened them. After some time,\nThomas found Arrey and attempted to rape her on the street\noutside the church where she was hiding. Arrey was able to\nescape. She did not report the incident to the police.\n\f ARREY V. BARR 11\n\n Following her encounter with Thomas, Arrey fled\nCameroon and traveled through Nigeria and Mexico to get\nto the United States.\n\n Arrey is not in contact with anyone in Cameroon, and\nshe does not know whether Thomas is presently searching\nfor her. Arrey is afraid to return to Cameroon because she\nfears Thomas and the Cameroonian police. Arrey is also\nafraid that she would be forced to undergo female genital\nmutilation in Cameroon; she knows that the practice still\nexists in her village and community, although it is typically\npracticed on girls soon after they reach the age of maturity\nand not on older women.\n\n In addition to her fears of returning to Cameroon, Arrey\ntestified that she fears returning to South Africa, because of\nthe “bad things she saw in South Africa,” including “a lot of\nblood.”\n\n C\n\n In an oral decision, the IJ denied Arrey’s claims and\nordered her removed to Cameroon. He found that Arrey had\nnot provided credible testimony, doubting that her passport\nwas stolen and that she experienced decades of abuse\nwithout reporting it or leaving.\n\n The IJ also found that Arrey was permanently resettled\nin South Africa between 2007 and 2014. Based on that\nfinding, the IJ reasoned that he should only consider the\nabuse Arrey suffered following her return to Cameroon in\n2014.\n\n The IJ then concluded that Arrey had not suffered past\npersecution on the ground that she was not in a relationship\nwith Thomas upon her return to Cameroon; instead, it was\n\f12 ARREY V. BARR\n\nas if Arrey experienced “random crimes against women,”\nwhich the IJ held did not qualify as persecution on account\nof a protected ground. Likewise, the IJ determined that\nArrey’s fear of Thomas amounted to a general fear of\nviolence against women. The IJ rejected Arrey’s fear that\nshe would be subjected to female genital mutilation in\nCameroon, because the Country report established that there\nwere no credible reports of Cameroonian women over the\nage of eighteen being subjected to female genital mutilation.\n\n On the basis that Arrey had not established that she\nsuffered persecution based on a protected ground, the IJ\nconcluded that Arrey necessarily had not met her burden of\nestablishing that she merited withholding of removal.\n\n On Arrey’s claim for protection under CAT, the IJ\ndetermined that Arrey’s fear was of Thomas, and not of the\nCameroonian government or any public official. The IJ\nnoted that Arrey had never reported the abuse she claimed to\nsuffer to the Cameroonian police. The IJ also rejected\nArrey’s claim that Thomas would be able to find her\nanywhere in Cameroon, despite Arrey’s contention that\nThomas was well-connected. The IJ explained that\nThomas’s connections would not make Arrey easily\nidentifiable in Cameroon or make her location easily known\nto Thomas, especially if she relocated to another part of\nCameroon.\n\n Arrey, represented by Richey, filed an administrative\nappeal of the IJ’s decision.\n\n D\n\n The Board issued a written decision on Arrey’s appeal.\nSignificantly, in our view, the Board rejected the IJ’s adverse\n\f ARREY V. BARR 13\n\ncredibility determinations as clearly erroneous and assumed\nArrey was credible.\n\n The Board agreed that Arrey had resettled in South\nAfrica before she “voluntarily” returned to Cameroon in\n2014. Like the IJ, the Board reasoned that because Arrey\nwas firmly resettled in South Africa, “her claim for asylum\nfrom Cameroon relates only to the events after she returned.”\nThe Board rejected Arrey’s argument that she was\npersecuted in South Africa on the basis that it was irrelevant,\nbecause she was not going to be removed to South Africa.\n\n The Board then held that Arrey had not demonstrated\nthat the harm she suffered in Cameroon upon her return in\n2014threats and one attempted assault of raperose to the\nlevel of past persecution. In addition, the Board concluded\nthat Arrey had not shown a nexus between the harm she\nexperienced or feared and a protected ground, because Arrey\ndid not claim to be in a domestic relationship with Thomas\nafter she returned in 2014. Finally, the Board agreed that\nArrey did not have an objectively reasonable fear of being\nforced to undergo female genital mutilation in Cameroon\ndue to her age. 1\n\n\n\n 1\n Notably, the 2015 Report on which both the IJ and the Board based\ntheir decisions states that“[u]nlike in previous years, there were no\ncredible reports of women ages 18 and above being subjected to” female\ngenital mutilation. But Arrey does not argue that the earlier reports,\nwhich report adult women being subjected to female genital mutilation,\nsupport her reasonable fear. See U.S. Dep’t of State, Cameroon 2013\nHuman Rights Report 24, https://www.justice.gov/sites/default/files/\neoir/legacy/2014/04/09/Cameroon.pdf (last visited Dec. 4, 2018). On\nappeal, she does not contest the finding that she did not have an\nobjectively reasonable fear of female genital mutilation.\n\f14 ARREY V. BARR\n\n Based on those conclusions, the Board affirmed the IJ’s\ndenial of asylum. The Board also determined that because\nArrey had not met her burden of proof with regard to asylum,\nshe necessarily did not qualify for withholding of removal.\n\n The Board affirmed the IJ’s denial of CAT protection. It\nreasoned that Arrey had not shown that it was more likely\nthan not that Thomas would find her and torture her were she\nto relocate. The Board agreed with the IJ that Arrey’s\ncontention that Thomas was a well-connected businessman\ndid not mean that she could not safely relocate within\nCameroon to avoid him.\n\n Lastly, the Board concluded that Arrey had not\ndemonstrated good cause for another continuance and\naffirmed the IJ’s denial of relief and protection in Arrey’s\ncase and dismissed her appeal. Arrey timely appealed.\n\n II\n\n We examine the BIA’s “legal conclusions de novo and\nits factual findings for substantial evidence.” Bringas-\nRodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)\n(en banc) (citations omitted). We “cannot affirm the BIA on\na ground upon which it did not rely.” Navas v. I.N.S.,\n217 F.3d 646, 658 n.16 (9th Cir. 2000).\n\n III\n\n A\n\n We first address Arrey’s due process challenges.\nPetitioners in immigration proceedings have a\nconstitutionally-protected right to a full and fair hearing. See\nVilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012);\nBarraza Rivera v. I.N.S., 913 F.2d 1443, 1447 (9th Cir.\n\f ARREY V. BARR 15\n\n1990). Arrey contends that her right to a full and fair hearing\nwas violated because she was denied her rights to\n(1) retained counsel and (2) an unbiased fact finder. We\nreject those contentions.\n\n 1\n\n Both Congress and our court have recognized the right\nto retained counsel as being among the rights that due\nprocess guarantees to petitioners in immigration\nproceedings. 8 U.S.C. § 1362 (codifying the right to counsel\nin immigration proceedings); Gomez-Velazco v. Sessions,\n879 F.3d 989, 993 (9th Cir. 2018) (“The right to be\nrepresented by counsel at one’s own expense is protected as\nan incident of the right to a fair hearing under the Due\nProcess Clause of the Fifth Amendment.”).\n\n Arrey did not explicitly waive her right to counsel at the\nApril 6 hearing. “In order for a waiver to be valid, an IJ must\ngenerally: (1) inquire specifically as to whether petitioner\nwishes to continue without a lawyer; and (2) receive a\nknowing and voluntary affirmative response.” Tawadrus v.\nAshcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citations\nomitted).\n\n Here, those elements were not met, so there was no\nknowing and intelligent waiver of the right to counsel.\nAlthough the IJ repeatedly asked Arrey whether she would\nlike to continue without her lawyer, she never gave her\nknowing and voluntary assent. Even when asked to choose\n\f16 ARREY V. BARR\n\nbetween continuing with the hearing and an automatic order\nof removal, she did not consent. 2\n\n When a petitioner does not waive the right to counsel,\n“IJs must provide [the petitioner] with reasonable time to\nlocate counsel and permit counsel to prepare for the\nhearing.” Biwot vs. Gonzalez, 403 F.3d 1094, 1098–99 (9th\nCir. 2005) (citing Rios–Berrios v. I.N.S., 776 F.2d 859, 862–\n63 (9th Cir. 1985)). The IJ’s decision not to continue a\nhearing is reviewed for abuse of discretion, but we have\nwarned that we will not “allow a ‘myopic insistence upon\nexpeditiousness’ to render the right to counsel ‘an empty\nformality.’” Biwot, 403 F.3d at 1099 (quoting Ungar v.\nSarafite, 376 U.S. 575, 589 (1964)).\n\n “No bright line guides our consideration of what\nconstitutes reasonable time.” Biwot, 403 F.3d at 1099. The\ninquiry is fact-specific:\n\n We pay particular attention to the realistic\n time necessary to obtain counsel; the time\n\n 2\n To the contrary, Arrey explicitly answered “no” at least twice when\nthe IJ inquired whether she would like to proceed without counsel. At\nthe outset, the IJ asked, “Ma’am, are you ready to proceed today?” and\nArrey told him, “my attorney said he will come.” Next, the IJ asked,\n“Did you want to go forward by yourself today, ma’am?” and Arrey\nresponded, “Your Honor, no.” After further discussion, the IJ asked,\n“are you going to be presenting evidence today, ma’am?” and she\nresponded, “Your Honor, I don’t know,” and suggested that her attorney\nmight have called in. The IJ then asked Arrey to choose between going\nforward by herself or being ordered removed. She responded, “Your\nHonor, I think you are the good one to take the decision.” Later, he\nasked, “do you want to present a case today,” and she said “Your Honor,\nI’m not ready.” Finally, he said, “So, what do you want to do? Your\nchoices are go forward today by yourself or finish your case with an\norder of removal today.” She said, “I can [indiscernible].”\n\f ARREY V. BARR 17\n\n frame of the requests for counsel; the number\n of continuances; any barriers that frustrated a\n petitioner’s efforts to obtain counsel, such as\n being incarcerated or an inability to speak\n English; and whether the petitioner appears\n to be delaying in bad faith.\n\nId. A petitioner is not denied the right to counsel where\n“continuing the hearing would have been futile” or where\n“the IJ had done everything he reasonably could to permit\n[the petitioner] to obtain counsel.” Id. at 1099−1100 (citing\nVides-Vides v. I.N.S., 783 F.2d 1463, 1469–70 (9th Cir.\n1986)); see also Hernandez-Gil v. Gonzalez, 476 F.3d 803,\n805−08 (9th Cir. 2007) (“When [a petitioner] has engaged\ncounsel and the IJ is aware of the representation, if counsel\nfails to appear, the IJ must take reasonable steps to ensure\nthat the [petitioner’s] statutory right to counsel is honored.”).\n\n We hold that the IJ in this case provided Arrey with\nreasonable time to locate counsel. Although Arrey was\ndetained during the proceedings, the IJ granted several\ncontinuances so that she could acquire an attorney. 3 And\nwhen her lawyer Richey did not appear at her final hearing,\nthe IJ called Richey’s office. The IJ also repeatedly warned\nArrey that the IJ would not continue her case any further;\nArrey, who had indicated that English was her best language,\nwas on notice of the consequences.\n\n\n\n\n 3\n The IJ granted four continuances to allow Arrey to obtain counsel.\nThe continuance from January 27 to March 28, however, appears to have\nbeen the result of the IJ’s scheduling availability.\n\f18 ARREY V. BARR\n\n 2\n\n Arrey also contends that she was denied her right to an\nunbiased fact finder. See Reyes-Melendez v. I.N.S., 342 F.3d\n1001, 1006 (9th Cir. 2003) (“The Due Process Clause\nrequires that [petitioners] threatened with deportation are\nprovided with the right to a full and fair hearing. A neutral\njudge is one of the most basic due process protections.”\n(internal quotation marks and citations omitted)). Although\nan IJ may “aggressively and sometimes harshly” question a\nwitness, Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th\nCir. 2003), he or she may not become a “partisan adjudicator\nseeking to intimidate” the petitioner rather than “a neutral\nfact-finder interested in hearing the petitioner’s evidence,”\nColmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000). A\npetitioner must show that the denial of his or her right to a\nneutral fact-finder “potentially affected the outcome of the\nproceedings.” Colmenar, 210 F.3d at 972 (internal quotation\nmarks and alteration omitted).\n\n The IJ in this case was rude and harsh with Arrey. He\nbadgered Arrey, accused her of selfishness and bad faith, and\nthreatened to enter an order of removal. But, Arrey has not\nshown that the harshness or rudeness prejudiced her: Despite\nhis harshly expressed and excessive frustration, the IJ held a\ncomplete hearing and made a thorough decision that fully\nexamined the underlying factual matters. And, crucially,\nalthough the IJ made a questionable adverse credibility\nfinding against Arrey, any prejudice from that was cured by\nthe Board’s subsequent decision assuming the credibility of\nher testimony in full.\n\n B\n\n We now address Arrey’s contention that the Board\nmisapplied the “firm resettlement rule.” That rule holds that\n\f ARREY V. BARR 19\n\nan applicant may not be granted asylum if he or she “was\nfirmly resettled in another country prior to arriving in the\nUnited States.” 8 U.S.C. § 1158(b)(2)(A)(vi); see also Su\nHwa She v. Holder, 629 F.3d 958, 962 (9th Cir. 2010),\nsuperseded by statute on other grounds as stated in Ming\nDai v. Sessions, 884 F.3d 858, 867 n.8 (9th Cir. 2018).\nDetermining whether the firm resettlement rule applies\ninvolves a two-step process: First, the government presents\n“evidence of an offer of some type of permanent\nresettlement,” and then, second, “the burden shifts to the\napplicant to show that the nature of his [or her] stay and ties\nwas too tenuous, or the conditions of his [or her] residence\ntoo restricted, for him [or her] to be firmly resettled.”\nMaharaj v. Gonzales, 450 F.3d 961, 976–77 (9th Cir. 2006)\n(en banc).\n\n Here, the Board committed three errors in its application\nof the firm resettlement rule. First, the Board improperly\nconcluded that Arrey had firmly resettled in South Africa. It\ncompleted step one of the analysis, noting that Ms. Arrey\nreceived an offer of refugee status. But it did not proceed to\nstep two to consider Arrey’s evidence that “the conditions of\n[her] residence [were] too restricted[] for [her] to be firmly\nresettled.” Maharaj, 450 F.3d at 976−77. In fact, the Board\nexplicitly declined to consider Arrey’s “claim[] that she\nexperienced past persecution in South Africa, and that she\nwill not be safe there.” 4 That evidence could rebut the\n 4\n The Board’s error in this respect is exacerbated by an oddity in this\ncase: Arrey has been ordered removed not to South Africa—where she\nallegedly had firmly resettled—but to Cameroon. See Mengstu v.\nHolder, 560 F.3d 1055, 1060 (9th Cir. 2009) (rejecting finding that\nEthiopian firmly resettled in Sudan in part because “[t]he IJ himself\ndesignated Ethiopia, rather than the Sudan, as the country of removal.”).\nIn most of our published decisions affirming application of the firm\nresettlement rule, the applicant has been ordered to return to the country\n\f20 ARREY V. BARR\n\nfinding of firm resettlement in light of our previous holding\nthat “firmly resettled aliens are by definition no longer\nsubject to persecution,” Yang v. I.N.S., 79 F.3d 932, 939 (9th\nCir. 1996). “Because of the evidence that [Arrey] may not\nhave found a haven from persecution in [South Africa,\nArrey] also has established at least a plausible claim that\n[s]he is not firmly resettled in [South Africa].” Siong v.\nI.N.S., 376 F.3d 1030, 1040 (9th Cir. 2004) (internal\nquotation marks and citations omitted). The Board’s\ndecision to ignore that evidence made its firm resettlement\ndetermination incomplete, and erroneous as a matter of law.\n\n Second, the Board incorrectly applied the firm\nresettlement rule not as a mandatory bar to Arrey’s claim for\nasylum—as the regulations intend it to operate, 8 U.S.C.\n§ 1158(b)(2)(A)(vi)—but instead as a limitation on the\nevidence the Board considered in support of her claim. This\nerror infected both the Board’s past persecution and\nprotected ground analyses. It ignored the abuse Arrey\nexperienced at the hands of Thomas and the police before\n\nwhere he or she was permanently resettled. See, e.g., Sung Kil Jang v.\nLynch, 812 F.3d 1187, 1189, 1193 (9th Cir. 2015) (upholding firm\nresettlement rule applied to petitioner from North Korea, who was firmly\nresettled in South Korea, and ordered removed to South Korea);\nNahrvani v. Gonzales, 399 F.3d 1148, 1152 (9th Cir. 2005) (upholding\nfirm resettlement rule applied to petitioner from Iran, who was firmly\nresettled in Germany and ordered removed to Germany); Vang v. I.N.S.,\n146 F.3d 1114, 1116–17 (9th Cir. 1998) (upholding firm resettlement\nrule applied to petitioner from Laos who was firmly resettled in France\nand ordered removed to Thailand, France, or Laos, in that order of\npreference); Yang, 79 F.3d at 934, 936–37 (upholding firm resettlement\nrule applied to petitioners from Laos, who were firmly resettled in\nFrance, and ordered removed to France). But see Maharaj v. Gonzales,\n450 F.3d 961, 966, 978 (9th Cir. 2006) (en banc) (remanding analysis of\nfirm resettlement rule applied to petitioner from Fiji, who resettled in\nCanada, and was ordered removed to Fiji).\n\f ARREY V. BARR 21\n\nshe left for South Africa. And it ignored Arrey and\nThomas’s relationship, which informed his reasons for\ntargeting her, her need to seek shelter with her friends to\navoid him, and the nature of his abuse. The firm resettlement\nrule does not tell the Board to ignore evidence of the\npetitioner’s persecution in a country to which she is to be\nremoved because she was for a while resettled, firmly or\notherwise, elsewhere. We conclude that doing so was\nimproper in this case. 5\n\n Third, the Board erred by applying the firm resettlement\nrule to limit the evidence it considered in support of Arrey’s\nwithholding of removal claims. The firm resettlement rule\ndoes not apply to those claims. Siong, 376 F.3d at 1040–41.\nSo the firm resettlement rule could not bar otherwise\nrelevant evidence on Arrey’s withholding of removal claims.\n\n We remand for proceedings consistent with this opinion.\nSee Gonzales v. Thomas, 547 U.S. 183, 185–86 (2006) (per\ncuriam) (holding that when the Board has not reached an\nissue, this Court should remand to allow the Board to\nconsider the issue in the first instance).\n\n\n\n\n 5\n It is true we have held that a petitioner’s “history of willingly\nreturning to his or her home country militates against a finding of past\npersecution or a well-founded fear of future persecution.” Ming Dai v.\nSessions, 884 F.3d 858, 871 (9th Cir. 2018) (quoting Loho v. Mukasey,\n531 F.3d 1016, 1017–18 (9th Cir. 2008)). But in this case, the Board did\nnot rely on that reasoning to rebut the presumption of a well-founded fear\nof persecution, presumably because Arrey had good reasons to return to\nCameroon. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091–92 (9th\nCir. 2008) (holding that where purpose of return trips was to gather\nincome to flee permanently, trips did not rebut presumption of well-\nfounded fear).\n\f22 ARREY V. BARR\n\n C\n\n Finally, we consider whether the Board erred in\ndetermining that Arrey was able to safely relocate in\nCameroon to avoid future harm.\n\n CAT prohibits the government from returning a person\nto a country where it is “more likely than not” that he or she\nwill be tortured. 8 C.F.R. § 1208.16(c)(2). The torture must\nbe by government officials or private actors with\ngovernment acquiescence. Cole v. Holder, 659 F.3d 762,\n771 (9th Cir. 2011). Unlike applications for asylum and\nwithholding of removal, “[a]n application for CAT relief\nneed not show that he will be tortured ‘on account of’ any\nparticular ground.” Id. at 770 (citing Kamalthas v. I.N.S.,\n251 F.3d 1279, 1283 (9th Cir. 2001)). “In deciding whether\nthe applicant has satisfied his or her burden, the IJ must\nconsider all relevant evidence, including but not limited to\nthe possibility of relocation within the country of removal.”\nMaldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015)\n(en banc); see also 8 C.F.R. § 1208.16(c)(3).\n\n Here, substantial evidence did not support the Board’s\nconclusion that Arrey could safely relocate within Cameroon\nto avoid future harm. The Board “agree[d] with the\nImmigration Judge that the respondent’s argument that\n[Thomas] is a ‘businessman’ and has lots of friends does not\nmean that she could not safely and reasonably relocate to\navoid harm.” The Government now argues that this\ndetermination is supported by substantial evidence because\n“save for a singular encounter from which she escaped,\nArrey was able to avoid Thomas by living in a different city\nwhen she returned,” “the record does not indicate that Arrey\nwould be unable to live in a different city than Mr. Thomas,”\nand “the record does not indicate that Mr. Thomas has the\n\f ARREY V. BARR 23\n\nresources and ability to locate her anywhere within the\ncountry.”\n\n But that is not what the record indicates. Arreywhom\nthe Board found credibletestified that she could not escape\nThomas due to his connections. The Board did not rebut that\ntestimony with country conditions evidence or any other\nevidence. Such bare speculation, without other support in\nthe record, cannot properly form the basis of an adverse\ncredibility finding, even in post-REAL ID Act cases. See\nSingh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015)\n(explaining that “an adverse credibility determination cannot\nbe based on complete speculation and conjecture,” but\nholding that adverse credibility determination based on\ninherent implausibility of petitioner’s account was\npermissible because it was based on record evidence rather\nthan pure speculation).\n\n Here, the record reflects that even when Arrey was in\nhiding from Thomas in a different city, Thomas was able to\ntrack her down. When he did, he attempted to rape her. In\nlight of that evidence, we must conclude that substantial\nevidence did not support the Board’s determination that\nArrey was not likely to be tortured because she could safely\nrelocate within Cameroon.\n\n We remand this claim for proceedings consistent with\nour holding.\n\n IV\n\n The Petition for Review is GRANTED in part; the case\nis REMANDED for further proceedings.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371190/", "author_raw": "GOULD, Circuit Judge:"}]}	RONALD M GOULD	MARSHA S BERZON	FREDERIC BLOCK	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593937/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,522		Sanford Wadler v. Bio-Rad Laboratories, Inc.	2019-02-26	17-16193	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Susan P. Graber and Mark J. Bennett, Circuit Judges, and Leslie E. Kobayashi, * District Judge.", "parties": "", "opinions": [{"author": "BENNETT, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n SANFORD S. WADLER, No. 17-16193\n Plaintiff-Appellee,\n D.C. No.\n v. 3:15-cv-02356-\n JCS\n BIO-RAD LABORATORIES, INC., a\n Delaware Corporation; NORMAN\n SCHWARTZ, OPINION\n Defendants-Appellants.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Joseph C. Spero, Magistrate Judge, Presiding\n\n Argued and Submitted November 14, 2018\n San Francisco, California\n\n Filed February 26, 2019\n\n Before: Susan P. Graber and Mark J. Bennett, Circuit\n Judges, and Leslie E. Kobayashi, * District Judge.\n\n Opinion by Judge Bennett\n\n\n \n The Honorable Leslie E. Kobayashi, United States District Judge\nfor the District of Hawaii, sitting by designation.\n\f2 WADLER V. BIO-RAD LABORATORIES\n\n SUMMARY \n\n\n Labor Law\n\n The panel vacated in part the district court’s judgment\nafter a jury trial, affirmed in part, and remanded in a\nwhistleblower retaliation suit.\n\n The jury found that Bio-Rad Laboratories, Inc., and its\nCEO violated the Sarbanes-Oxley Act, the Dodd-Frank Act,\nand California public policy by terminating the employment\nof Bio-Rad’s former general counsel, Sanford Wadler, in\nretaliation for his internal report that he believed the\ncompany had engaged in violations of the Foreign Corrupt\nPractices Act in China.\n\n Vacating the SOX verdict, the panel held that the district\ncourt erred in instructing the jury that statutory provisions of\nthe FCPA constitute rules or regulations of the SEC for\npurposes of whether Wadler engaged in protected activity\nunder SOX § 806. Because a properly instructed jury could\nreturn a SOX verdict in favor of Wadler, the panel remanded\nfor the district court to determine whether a new trial was\nwarranted.\n\n With respect to Wadler’s California public policy claim,\nthe panel concluded that the district court’s SOX\ninstructional error was harmless and therefore affirmed the\nverdict and corresponding damages as to that claim.\n\n\n\n \n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f WADLER V. BIO-RAD LABORATORIES 3\n\n Addressing additional issues in a contemporaneously-\nfiled memorandum disposition, the panel also vacated the\ndistrict court’s Dodd-Frank verdict and remanded.\n\n\n COUNSEL\n\nKathleen M. Sullivan (argued) and William B. Adams,\nQuinn Emanuel Urquhart & Sullivan LLP, New York, New\nYork; Karin Kramer, Andrew P. March, and John M. Potter,\nQuinn Emanuel Urquhart & Sullivan, LLP, San Francisco,\nCalifornia; for Defendants-Appellants.\n\nMichael John von Loewenfeldt (argued), Kenneth P. Nabity,\nand James M. Wagstaffe, Kerr & Wagstaffe LLP, San\nFrancisco, California, for Plaintiff-Appellee.\n\n\n OPINION\n\nBENNETT, Circuit Judge:\n\n In this whistleblower retaliation case, Bio-Rad\nLaboratories, Inc. (“Bio-Rad” or “the Company”) and its\nCEO, Norman Schwartz, appeal an $11 million jury verdict\nin favor of Bio-Rad’s former general counsel, Sanford\nWadler. 1 The jury found that Defendants violated the\nSarbanes-Oxley Act (“SOX”), the Dodd-Frank Act, and\nCalifornia public policy by terminating Wadler’s\nemployment in retaliation for his internal report that he\nbelieved the Company had engaged in serious and prolonged\n\n\n 1\n We refer to the Defendants collectively as “Bio-Rad” except when\nnecessary to distinguish between them.\n\f4 WADLER V. BIO-RAD LABORATORIES\n\nviolations of the Foreign Corrupt Practices Act (“FCPA”) in\nChina.\n\n On appeal, Defendants argue that the district court erred\nby instructing the jury that statutory provisions of the FCPA\nconstitute “rule[s] or regulation[s] of the Securities and\nExchange Commission” (“SEC”) for purposes of whether\nWadler engaged in “protected activity” under SOX § 806,\n18 U.S.C. § 1514A(a). We agree. We reject, however, Bio-\nRad’s argument that no properly instructed jury could return\na SOX verdict in favor of Wadler. Accordingly, we vacate\nthe SOX verdict and remand for the district court to\ndetermine whether a new trial is warranted.\n\n With respect to Wadler’s California public policy claim,\nby contrast, we conclude that the district court’s SOX\ninstructional error was harmless and therefore we affirm the\nverdict and corresponding damages as to that claim.\n\n In a memorandum disposition filed this date, we\nconclude that the instructional error was not harmless as to\nthe SOX claim. We also reject Bio-Rad’s challenges to the\ndistrict court’s evidentiary rulings and the sufficiency of the\nevidence. Finally, we vacate with instructions to enter\njudgment in favor of Bio-Rad as to the Dodd-Frank claim in\nlight of Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767,\n778 (2018), which held that Dodd-Frank does not apply to\npurely internal reports. We therefore also vacate the portion\nof damages attributable solely to the Dodd-Frank verdict,\napproximately $2.96 million plus interest.\n\n Accordingly, we vacate in part, affirm in part, and\nremand for consideration of whether a new trial is warranted\nas to the SOX claim.\n\f WADLER V. BIO-RAD LABORATORIES 5\n\n I.\n\n We must view the evidence at trial in the light most\nfavorable to the verdict. Shafer v. Cty. of Santa Barbara,\n868 F.3d 1110, 1115 (9th Cir. 2017), cert. denied, 138 S. Ct.\n2582 (2018). Because the jury returned a verdict in favor of\nWadler on all claims, we review the pertinent facts adduced\nat trial in the light most favorable to him.\n\n A.\n\n The trial centered on a memorandum that Wadler\ndelivered to the Audit Committee of Bio-Rad’s Board of\nDirectors in February 2013 (the “Audit Committee Memo”\nor “Memo”) and Schwartz’s subsequent decision to\nterminate Wadler’s employment in June 2013. Wadler\nstated in the Memo that he believed Bio-Rad employees in\nChina had violated the FCPA’s bribery and books-and-\nrecords provisions, and that senior management was likely\ncomplicit.\n\n The factual basis for the Memo, and Wadler’s reasons\nfor writing it, can be traced back to 2009. In that year, Bio-\nRad’s internal audit team discovered that Bio-Rad salesmen\nin Vietnam and Thailand had engaged in potential FCPA\nviolations. At Wadler’s recommendation, Bio-Rad hired\nFCPA attorney Patrick Norton of Steptoe & Johnson to\ninvestigate.\n\n Norton reported his findings to Bio-Rad’s Board of\nDirectors in September 2011. Specifically, Norton reported\nthat he had found evidence that Bio-Rad employees were\nviolating the FCPA’s bribery and books-and-records\nprovisions in Vietnam, Thailand, and Russia. As for China,\nNorton reported several “red flags,” including “[v]ery high,\nunexplained commissions” and a “history of widespread\n\f6 WADLER V. BIO-RAD LABORATORIES\n\ncorruption” in the country’s medical products market.\nNorton reported, however, that “no evidence of improper\npayments” had been found to date in China.\n\n In June 2012, Wadler and Schwartz received the results\nof a sales documentation audit that had been initiated at the\nrequest of Bio-Rad’s licensor, Life Technologies, Inc. (“Life\nTech”). The audit, which covered the years 2006 to 2010,\nrevealed that Bio-Rad owed Life Tech around $30 million in\nroyalty obligations due to Bio-Rad’s missing documentation\nof end-user prices for products primarily in the Chinese\nmarket.\n\n Wadler and John Cassingham, an in-house patent lawyer\nwho reported to Wadler, repeatedly attempted to obtain the\nmissing sales documents from China. In November 2012,\nCassingham finally succeeded in obtaining a complete set of\ndocuments for a single transaction and sent those documents\nto Wadler. Wadler testified that Cassingham thought the\ndocuments showed bribery. Wadler further testified that he\nsubsequently told Schwartz about the potential bribery, but\nSchwartz responded that he was not going to do anything\nabout it.\n\n Wadler’s concerns increased as he and Cassingham\nspoke to other employees. In December 2012, for example,\na senior Bio-Rad manager in China told Wadler that he had\nnever visited one of Bio-Rad’s main distributors to look for\ndocuments, despite the distributor’s failure to comply with\nBio-Rad’s documentation requests. A different Bio-Rad\nemployee in China later told Cassingham (who in turn told\nWadler) about a widespread “under the covers” scheme in\nwhich cover sheets on import/export documents were used\nto show the official number of products while the shipments\nthemselves were padded with free extra products. Wadler\nlater obtained around 160 sets of Chinese sales documents,\n\f WADLER V. BIO-RAD LABORATORIES 7\n\nthirty percent of which showed the product-padding pattern\nthat fit the description of the “under the covers” scheme.\n\n In January 2013, Wadler discovered that Bio-Rad\nemployees in China had entered into unauthorized contracts\nwith distributors. In the course of investigating those\ncontracts, Wadler learned that they were not accurate\ntranslations of approved English-language distributor\ncontracts, but had instead been translated from an earlier\ntemplate that did not include FCPA compliance provisions.\nWadler’s junior attorneys also informed him that the\ncontracts provided for unauthorized “incentives payable in\nfree product – between 1–3% of sales if [salesmen] achieved\ncertain targets,” with a “financial impact of . . .\napproximately one million dollars.”\n\n B.\n\n On February 8, 2013, Wadler delivered the Memo to the\nAudit Committee, reporting his belief that there were\n“serious and prolonged violations of the FCPA in Bio-Rad’s\nbusiness in China.” Wadler listed several sources of\nconcern: (1) a free-product scheme that “suggest[ed] several\npossibilities for bribery”; (2) Bio-Rad’s inability to obtain\ndocuments for the Life Tech audit, which “could itself be\nconsidered a substantive and clear violation of [the FCPA’s]\nbooks and records requirements”; and (3) the Chinese\ndistributor contracts without FCPA compliance language.\nWadler concluded that “these practices [we]re endemic and\nthat high levels of management within the company had to\nknow they were happening,” which, he continued, was why\nhe had not yet discussed his concerns with senior\nmanagement (including Schwartz).\n\n Wadler recommended that Bio-Rad “promptly conduct\nan in depth investigation into business practices in China”\n\f8 WADLER V. BIO-RAD LABORATORIES\n\nand that the Company report his suspicions to the\ngovernment and to the Company’s auditors. The Company’s\nduty to report was “especially true,” he wrote, because it had\n“meetings scheduled with the government agencies in late\nFebruary to discuss the ‘tone at the top’ in relationship to\npenalties for the violations in Vietnam, Russia, Thailand and\nBrazil.” Wadler opined that it “would deeply prejudice how\nthe government would view the company if we had\ndiscussions about ‘tone at the top’ knowing that there [were]\npotentially serious additional violations that were being\nwithheld.”\n\n C.\n\n In response to the Memo, the Audit Committee\nauthorized Wadler to hire Davis Polk & Wardwell to\ninvestigate his concerns. On February 20, 2013, the\nChairman of the Audit Committee told Schwartz about the\nMemo. Two days later Schwartz informed the head of Bio-\nRad’s human resources department that Wadler had “been\nacting a little bizarre lately” and that Schwartz might “want\nto put him on an administrative leave.” By March, Schwartz\nhad become “entirely frustrated” with Wadler but believed\nthat “he must stay in place until [an] FCPA settlement” with\nthe government was final.\n\n Davis Polk reported the findings of its investigation to\nBio-Rad’s Board of Directors on June 4, 2013. Davis Polk\nfound that there was “no evidence to date of any violation—\nor attempted violation—of the FCPA” in China. Schwartz\nfired Wadler three days later. Bio-Rad later paid the\ngovernment a total of $55 million to resolve its investigation\ninto FCPA issues in Vietnam, Thailand, and Russia.\nNothing was paid as a result of any FCPA issues in China.\n\f WADLER V. BIO-RAD LABORATORIES 9\n\n II.\n\n In May 2015, Wadler brought this action for\ncompensatory and punitive damages against the Company\nand Schwartz. As relevant here, Wadler alleged violations\nof SOX and Dodd-Frank as to both Defendants, and a\nviolation of California public policy under Tameny v.\nAtlantic Richfield Co., 610 P.2d 1330, 1336–37 (Cal. 1980)\n(the “Tameny” claim) against the Company only. The case\nproceeded to a jury trial in January 2017.\n\n At trial, Wadler set out to prove that Schwartz fired him\nin retaliation for reporting alleged FCPA violations to the\nAudit Committee, while Bio-Rad attempted to show that\nWadler was fired due to his poor performance and\ndysfunctional relationship with management. Bio-Rad also\ntried to show that Wadler wrote the Memo only because he\nwas concerned about his job security, and that it would have\nbeen unreasonable for a general counsel in Wadler’s position\nto believe that the Company had violated the FCPA in China.\n\n At the close of trial, the judge gave several jury\ninstructions concerning when an employee engages in\n“protected activity” for purposes of SOX, Tameny, and\nDodd-Frank. For each of the three claims, the instructions\nstated that Wadler had to prove he engaged in protected\nactivity under SOX, which in turn depended on whether he\ndisclosed conduct that he reasonably believed violated a\n“rule or regulation of the” SEC. The main instruction at\nissue in this appeal, Instruction 21, stated that, under “the\nrules and regulations of the [SEC] applicable to Bio-Rad,” it\nis unlawful to (1) bribe a foreign official; (2) fail to keep\naccurate and reasonably detailed books and records;\n\f10 WADLER V. BIO-RAD LABORATORIES\n\n(3) knowingly falsify books and records; and (4) knowingly\ncircumvent a system of internal accounting controls. 2\n\n The jury returned a verdict in favor of Wadler on all three\nclaims. As to all three claims in general, the jury awarded\nWadler $2.96 million in compensatory damages for past\neconomic loss against both Defendants. The district court\ndoubled that amount under Dodd-Frank’s doubling\nprovision, 15 U.S.C. § 78u-6(h)(1)(C)(ii), resulting in a total\naward of $5.92 million plus interest against Schwartz.\nBecause the jury also awarded Wadler $5 million in punitive\ndamages against the Company based on the Tameny claim,\nthe total award against the Company was $10.92 million plus\ninterest.\n\n Bio-Rad subsequently filed a renewed motion for\njudgment as a matter of law (“JMOL”) and a motion for new\ntrial. Bio-Rad argued, inter alia, that Wadler’s disclosure of\nalleged FCPA violations was not protected activity under\nSOX because provisions of the FCPA, a statute, do not\nconstitute SEC rules or regulations for purposes of SOX\n§ 806. The district court denied Bio-Rad’s motions. The\ncourt concluded that the FCPA is a “rule or regulation of the\nSEC” for purposes of SOX because “the FCPA is an\namendment to the Securities . . . Exchange Act of 1934 and\nis codified within it.” This appeal followed.\n\n III.\n\n We have jurisdiction under 28 U.S.C. § 1291 over the\nappeal of the denial of a motion for new trial and renewed\n 2\n For simplicity, throughout this opinion we refer to the books-and-\nrecords provisions listed in paragraphs two and three of Instruction 21,\nand the internal accounting controls provision in paragraph four of\nInstruction 21, collectively as the “books-and-records” provisions.\n\f WADLER V. BIO-RAD LABORATORIES 11\n\nmotion for JMOL, and the district court’s interlocutory\nrulings at trial. See Hall v. City of Los Angeles, 697 F.3d\n1059, 1070 (9th Cir. 2012). The district court had\njurisdiction under 28 U.S.C. §§ 1331 and 1367.\n\n We review de novo whether a jury instruction correctly\nstates the law. Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th\nCir. 2014). The denial of a motion for JMOL is also\nreviewed de novo, Castro v. Cty. of Los Angeles, 833 F.3d\n1060, 1066 (9th Cir. 2016), and the denial of a motion for\nnew trial is reviewed for abuse of discretion, Crowley v.\nEpicept Corp., 883 F.3d 739, 748 (9th Cir. 2018) (per\ncuriam). We review de novo questions of statutory\ninterpretation. California v. Iipay Nation of Santa Ysabel,\n898 F.3d 960, 964 (9th Cir. 2018).\n\n IV.\n\n A. The SOX Claim\n\n Section 806 of SOX prohibits publicly traded companies\nfrom retaliating against an employee who lawfully reports\n\n any conduct which the employee reasonably\n believes constitutes a violation of [18 U.S.C.]\n section 1341 [mail fraud], 1343 [wire fraud],\n 1344 [bank fraud], or 1348 [securities fraud],\n any rule or regulation of the Securities and\n Exchange Commission, or any provision of\n Federal law relating to fraud against\n shareholders . . . .\n\n18 U.S.C. § 1514A(a)(1). The question before us is whether\nthe district court erred by instructing the jury that, for\npurposes of § 806, rules or regulations of the SEC include\nthe FCPA’s books-and-records provisions, 15 U.S.C.\n\f12 WADLER V. BIO-RAD LABORATORIES\n\n§ 78m(b)(5), (2)(A), and anti-bribery provision, id. § 78dd-\n1(a). We conclude that the court erred. However, because a\nproperly instructed jury could return a verdict in Wadler’s\nfavor, we vacate the SOX verdict and remand for the district\ncourt to consider whether a new trial is appropriate in light\nof our decision to affirm the Tameny verdict.\n\n 1.\n\n As a threshold matter, we consider whether Bio-Rad’s\nclaim of instructional error is properly before us with respect\nto paragraphs two through four of Instruction 21 concerning\nbooks and records. Wadler argues that Bio-Rad invited error\nor waived the books-and-records part of its claim, in light of\nBio-Rad’s shifting positions in the district court. Bio-Rad\ncorrectly conceded in the district court, and continues to\nconcede on appeal, that one of the FCPA books-and-records\nprovisions in Instruction 21 is also an SEC regulation within\nthe scope of § 806. See 17 C.F.R. § 240.13b2-1 (“No person\nshall directly or indirectly, falsify or cause to be falsified,\nany book, record or account . . . .”). At times, however, Bio-\nRad appeared to abandon a challenge to all three books-and-\nrecords provisions listed in Instruction 21 by targeting only\nthe FCPA anti-bribery provision. Although Bio-Rad’s\nposition was not always clear, we conclude that its actions\ndid not rise to the level of invited error or waiver.\n\n As for invited error, Bio-Rad originally objected to the\njury instructions on the ground that reporting any FCPA\nviolation is not SOX-protected activity. Although Bio-Rad\nnarrowed its objection at one point to only the anti-bribery\nportion of the instructions, Bio-Rad expressly preserved its\noriginal objection at the final jury instructions conference.\nThe district court then stated that Bio-Rad’s position that a\nstatute is not a rule or regulation for purposes of § 806 was\n“very clear.” On this record, we cannot say that Bio-Rad\n\f WADLER V. BIO-RAD LABORATORIES 13\n\nwas responsible for any error in the jury instructions. See\nSovak v. Chugai Pharm. Co., 280 F.3d 1266, 1270 (9th Cir.),\namended by 289 F.3d 615 (9th Cir. 2002).\n\n Bio-Rad also raised its present claim in the JMOL\nbriefing such that it is not waived on appeal. Bio-Rad\nspecifically argued, in its JMOL motion, that the FCPA is\nnot a rule or regulation of the SEC because it is a statute.\nEven if Bio-Rad again limited the scope of that argument to\nthe anti-bribery context in its renewed JMOL motion, the\ndistrict court addressed the merits of the basic issue before\nus now: whether any FCPA provision can be a rule or\nregulation of the SEC for purposes of § 806. Accordingly,\nthat issue is properly before us. See True Health\nChiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 930\n(9th Cir. 2018), petition for cert. filed, ___ U.S.L.W. ___\n(U.S. Jan. 25, 2019) (No. 18-987); see also Tarabochia v.\nAdkins, 766 F.3d 1115, 1128 n.12 (9th Cir. 2014) (“[E]ven\nif a party fails to raise an issue in the district court, we\ngenerally will not deem the issue waived if the district court\nactually considered it.”).\n\n We therefore proceed to the merits of the issue raised on\nappeal: whether Instruction 21 erroneously listed the\nFCPA’s anti-bribery and books-and-records-provisions as\n“rules or regulations of the SEC” under SOX § 806.\n\n 2.\n\n In construing the provisions of a statute, “we begin with\nwell-settled canons of statutory interpretation.” Zazzali v.\nUnited States (In re DBSI, Inc.), 869 F.3d 1004, 1010 (9th\nCir. 2017). “A primary canon of statutory interpretation is\nthat the plain language of a statute should be enforced\naccording to its terms, in light of its context.” ASARCO, LLC\nv. Celanese Chem. Co., 792 F.3d 1203, 1210 (9th Cir. 2015).\n\f14 WADLER V. BIO-RAD LABORATORIES\n\nWe also presume that Congress acts intentionally when it\nuses particular wording in one part of a statute but omits it\nin another. Dep’t of Homeland Sec. v. MacLean, 135 S. Ct.\n913, 919 (2015). Thus, when a statute uses the phrase “law,\nrule, or regulation” in one section but uses only “law” in a\ndifferent section, the word “law” does not encompass\nadministrative rules or regulations. Id. at 919–20; Dep’t of\nTreasury, IRS v. Fed. Labor Relations Auth., 494 U.S. 922,\n931–32 (1990).\n\n Applying these principles here, we hold that § 806’s text\nis clear: an FCPA provision is not a “rule or regulation of the\n[SEC].” 18 U.S.C. § 1514A(a)(1). Although the words\n“rule” and “regulation” could perhaps encompass a statute\nwhen read in isolation, the more natural and plain reading of\nthese words together and in context is that they refer only to\nadministrative rules or regulations. That the phrase “rule or\nregulation” is used in conjunction with an administrative\nagency, the SEC, suggests that it encompasses only\nadministrative rules or regulations. Most notably, Congress\nuses the phrase “any rule or regulation of the [SEC]” in the\nsame list in which it uses “any provision of Federal law\nrelating to fraud against shareholders,” id., which strongly\nsuggests that there is a difference between the meaning of\n“rule or regulation” and “law.” See MacLean, 135 S. Ct. at\n919–20; Dep’t of Treasury, IRS, 494 U.S. at 931–32. The\nmost obvious explanation is that “law” encompasses\nstatutes, like the FCPA, whereas “rule or regulation” does\nnot.\n\n We reject Wadler’s arguments for a different\ninterpretation. First, Wadler argues that “rule or regulation\nof the SEC” should be broadly interpreted in light of SOX’s\nremedial purpose of protecting employees who report\ncorporate misconduct. It is a “familiar canon of statutory\n\f WADLER V. BIO-RAD LABORATORIES 15\n\nconstruction that remedial legislation should be construed\nbroadly to effectuate its purposes,” Tcherepnin v. Knight,\n389 U.S. 332, 336 (1967), but this canon should not be\n“treated . . . as a substitute for a conclusion grounded in the\nstatute’s text and structure,” CTS Corp. v. Waldburger,\n134 S. Ct. 2175, 2185 (2014).\n\n Second, Wadler’s reliance on legislative history—in the\nform of statements made on the Senate floor—is equally\nunavailing. When, as here, “a statute’s language is plain and\nunambiguous, our inquiry ends.” Christie v. Ga.-Pac. Co.,\n898 F.3d 952, 958 (9th Cir. 2018).\n\n In sum, statutory provisions of the FCPA, including the\nthree books-and-records provisions and anti-bribery\nprovision listed in Instruction 21, are not “rules or\nregulations of the SEC” under SOX § 806. The district court\nerred in instructing the jury otherwise. As noted above, in a\nmemorandum disposition filed this date, we conclude that\nthe instructional error was not harmless as to the SOX claim.\n\n 3.\n\n Having found error that was not harmless, we must\ndetermine the proper remedy. Bio-Rad argues that we must\nreverse with instructions to enter judgment in its favor\nbecause a properly instructed jury could not return a verdict\nfor Wadler. We disagree.\n\n When a district court commits instructional error, we\nreverse and direct entry of judgment if “the evidence\npresented [at] trial would not suffice, as a matter of law, to\nsupport a jury verdict under the properly formulated\n[instruction].” Boyle v. United Techs. Corp., 487 U.S. 500,\n513 (1988). Bio-Rad argues that there is insufficient\nevidence to support a verdict based on properly formulated\n\f16 WADLER V. BIO-RAD LABORATORIES\n\ninstructions. Although Bio-Rad acknowledges that\nInstruction 21 properly lists a books-and-records\nfalsification provision as an SEC rule or regulation in light\nof 17 C.F.R. § 240.13b2-1, Bio-Rad contends that there is\ninsufficient evidence to prove that Wadler reported conduct\nthat he reasonably believed violated that regulation.\n\n Evidence is insufficient only “if, under the governing\nlaw, there can be but one reasonable conclusion as to the\nverdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250\n(1986). Conversely, if “reasonable minds could differ as to\nthe import of the evidence,” the evidence is sufficient. Id. at\n250–51. Sufficiency is a low bar, especially because “we\nmust construe the facts in the light most favorable to the\njury’s verdict.” Shafer, 868 F.3d at 1115 (internal quotation\nmarks omitted).\n\n This already low bar is further lowered by the\nsubstantive law governing protected activity under § 806.\nSee Anderson, 477 U.S. at 250. In a new trial, Wadler would\nnot have to prove that he reported an actual violation. Van\nAsdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th Cir.\n2009); Sylvester v. Parexel Int’l LLC, No. 07-123, 2011 WL\n2517148, at 14 (Dep’t of Labor May 25, 2011) (en banc).\nHe would have to prove only that he “reasonably believed\nthat there might have been” a violation and that he was “fired\nfor even suggesting further inquiry.” Van Asdale, 577 F.3d\nat 1001. We have referred to this standard as a “minimal\nthreshold requirement.” Id.\n\n Construing the facts in the light most favorable to the\nverdict, a jury permissibly could find that Wadler satisfied\nthat minimal requirement. First, a reasonable jury could find\nthat the Audit Committee Memo suggested further inquiry\ninto whether Bio-Rad falsified books and records. The\nMemo described many instances in which Bio-Rad’s\n\f WADLER V. BIO-RAD LABORATORIES 17\n\nshipping documents did not match the billing documents of\ndistributors or end-users. Although a jury could find that\nsuch discrepancies did not raise books-and-records\nconcerns, or that they did not specifically implicate the\nSEC’s falsification regulation, a reasonable jury also could\nfind that further inquiry was warranted with respect to\nfalsification.\n\n Second, a reasonable jury could find that Wadler\nreasonably believed that Bio-Rad had falsified books and\nrecords. In a new trial, Wadler would have to prove that he\nsubjectively believed that the conduct described in the\nMemo evidenced the falsification of books and records and\nthat his belief was objectively reasonable in the\ncircumstances. Van Asdale, 577 F.3d at 1000; Sylvester,\n2011 WL 2517148, at 12. The objective reasonableness\ncomponent, the only component that Bio-Rad challenges on\nappeal, “is evaluated based on the knowledge available to a\nreasonable person in the same factual circumstances with the\nsame training and experience as the aggrieved employee.”\nSylvester, 2011 WL 2517148, at 12 (quoting Harp v.\nCharter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009)).\n“The reasonable belief standard requires an examination of\nthe reasonableness of a complainant’s beliefs, but not\nwhether the complainant actually communicated the\nreasonableness of those beliefs to management or the\nauthorities.” Id. at *13.\n\n There is sufficient evidence to support the objective\nreasonableness of Wadler’s belief that Bio-Rad had falsified\nbooks and records. Before he submitted the Audit\nCommittee Memo in February 2013, Wadler was aware of\nBio-Rad’s FCPA issues in several countries and the\nnumerous “red flags” in China. Wadler testified that\nCassingham thought the Life Tech audit documents showed\n\f18 WADLER V. BIO-RAD LABORATORIES\n\nbribery. Wadler also testified that a Bio-Rad employee\nreported an “under the covers” scheme in which Bio-Rad\nshipped free products. Finally, Wadler discovered Chinese\ncontracts without FCPA compliance language and with\nunauthorized terms providing for free product incentives.\n\n Bio-Rad argues that this evidence does not directly\nimplicate books-and-records falsification. A reasonable\njury, however, could find that a general counsel in Wadler’s\nposition reasonably believed that Bio-Rad was falsifying\nbooks and records as part of its alleged FCPA violations in\nChina. While the evidence needed to support a\nwhistleblower’s reasonable belief will necessarily vary with\nthe circumstances, § 806 generally does not require an\nemployee to undertake an investigation before reporting his\nconcerns. See Van Asdale, 577 F.3d at 1002 (“Requiring an\nemployee to essentially prove the existence of fraud before\nsuggesting the need for an investigation would hardly be\nconsistent with Congress’s goal of encouraging\ndisclosure.”). Such a requirement would undermine the\npurpose of SOX, particularly where, as here, a general\ncounsel reports his concerns to the Board of Directors\nbecause he believes that senior management is complicit in\nunlawful conduct. Wadler’s Audit Committee Memo\nprompted further investigation, and the Audit Committee’s\nChair testified that he thought Wadler “did a terrific job” by\nreporting his concerns. In these circumstances, there is\nsufficient evidence to support a SOX verdict under a\nproperly formulated falsification instruction. 3 We therefore\n\n\n 3\n Because the evidence at trial was even stronger with respect to the\nother FCPA provisions listed in Instruction 21, we reject Bio-Rad’s\nargument that the district court erred by concluding that substantial\nevidence supports all three verdicts.\n\f WADLER V. BIO-RAD LABORATORIES 19\n\ndo not reverse with instructions to direct entry of judgment\nin Bio-Rad’s favor.\n\n Accordingly, we vacate the SOX verdict against the\nCompany and Schwartz and remand for the district court to\nconsider whether a new trial is warranted. In light of our\ndecision below, affirming the Tameny verdict against the\nCompany and the corresponding verdict for compensatory\ndamages for past economic loss, the district court should\nconsider whether, and to what extent, any retrial would result\nin an impermissible double recovery for the same injury. See\nCalifornia v. Chevron Corp., 872 F.2d 1410, 1414 (9th Cir.\n1989). The district court may also consider any other\nreasons why our opinion might bar or obviate the need for a\nSOX retrial, or might limit the issues in such a retrial. If a\nnew trial is warranted, the district court may consider in the\nfirst instance whether to allow a “fraud against shareholders”\ntheory, as well as any other arguments consistent with this\nopinion. See, e.g., Bator v. Hawaii, 39 F.3d 1021, 1030 n.9\n(9th Cir. 1994).\n\n B. The Tameny Claim\n\n We now consider Bio-Rad’s challenge to the Tameny\nverdict. Bio-Rad argues that the SOX instructional error\ntainted the Tameny verdict because Wadler’s engaging in\nprotected activity under SOX was a predicate to his success\non the Tameny claim. However, Wadler contends that the\nTameny instruction, Instruction 27, referred to the SOX-\nprotected activity instructions simply to tell the jury that he\nhad to prove that he was retaliated against for reporting\nconduct that he reasonably believed violated the FCPA\nprovisions in Instruction 21—not because SOX itself was a\nnecessary part of his Tameny theory at trial. We agree with\nWadler.\n\f20 WADLER V. BIO-RAD LABORATORIES\n\n Under California law, a Tameny claim must rely on a\n“fundamental public policy” that is “tethered to” a\nconstitutional or statutory provision. Green v. Ralee Eng’g\nCo., 960 P.2d 1046, 1048–49 (Cal. 1998). The California\nSupreme Court has not decided whether SOX or the relevant\nFCPA provisions are tethered to a fundamental public policy\nfor purposes of Tameny. Because the parties do not dispute\nthose questions, we will not decide them either. 4 Instead, we\nassume without deciding that a plaintiff may state a Tameny\nclaim by alleging that he was retaliated against (1) for\nengaging in SOX-protected activity or (2) for reporting\nconduct that he reasonably believed violated the FCPA’s\nbribery or books-and-records provisions, regardless of\nwhether that report is protected by SOX. See id. at 1051\n(recognizing that Tameny protects reporting “a statutory\nviolation for the public’s benefit”); id. at 1059 (“[A]n\nemployee need not prove an actual violation of law; it\nsuffices if the employer fired him for reporting his\n‘reasonably based suspicions’ of illegal activity.”); Collier\nv. Superior Court, 279 Cal. Rptr. 453, 458 (Ct. App. 1991)\n(recognizing that Tameny protects reporting bribery).\n\n Wadler properly raised a Tameny theory based on a\nfundamental public policy tied to the FCPA, which was\nindependent of his claim under SOX. To begin with, the\nTameny portion of Wadler’s complaint referenced both the\nFCPA and SOX. And, like his complaint, the first version\nof Wadler’s proposed Tameny instruction referenced both\nSOX and the FCPA. Most notably, just before trial, Bio-Rad\nproposed a Tameny instruction that did not reference SOX at\n\n 4\n Indeed, as we explain below, Bio-Rad proposed a jury instruction\nin the district court suggesting that it accepted that the relevant FCPA\nprovisions are tethered to a fundamental public policy for purposes of\nTameny.\n\f WADLER V. BIO-RAD LABORATORIES 21\n\nall: “The plaintiff has the burden of proving . . . [t]hat Bio-\nRad discharged Plaintiff for making a report of what the\nPlaintiff in good faith and reasonably believed was an FCPA\nviolation.” The judge then proposed a Tameny instruction\n(Instruction 27) referencing only SOX. However, there is\nnothing to suggest that the judge did so in order to remove\nan FCPA-based Tameny theory from the case. To the\ncontrary, all available evidence indicates that the Tameny\ninstruction referred to protected activity under SOX simply\nto present the jury with a single factual theory of Tameny\nliability, which the parties understood could be based on a\nfundamental public policy tied to either SOX or the FCPA.\nAs Wadler acknowledged in the district court, and as Bio-\nRad recognizes on appeal, there was “complete overlap\nbetween the type of protected activity involved in [Wadler’s\nTameny] claim and his claim under the Sarbanes-Oxley\nAct.” Considering the structure of the final jury instructions\nand the record as a whole, we conclude that Wadler\npresented the jury with a single factual theory of Tameny\nliability, which turned on his report of alleged FCPA\nviolations and was not dependent on his claim under SOX.\n\n Instruction 27 (the Tameny instruction) was the first in a\nchain of cross-references that ultimately made the success of\nWadler’s Tameny claim dependent on whether Bio-Rad\nretaliated against him for reporting conduct that he\nreasonably believed violated the FCPA. Instruction 27 told\njurors that, to prevail on his Tameny claim, Wadler had to\nprove that a motivating reason for his discharge was\nengaging in protected activity under SOX. It then referred\njurors to the SOX instructions in order to determine if his\nactivity was protected.\n\n Notably, jurors were instructed that, to prevail on a\nTameny claim, Wadler had to believe that one of the\n\f22 WADLER V. BIO-RAD LABORATORIES\n\nprovisions listed in Instruction 21 (captioned “The Foreign\nCorrupt Practices Act”) had been violated. Instruction 21\nlisted provisions of the FCPA: it is unlawful to (1) bribe a\nforeign official; (2) fail to keep accurate and reasonably\ndetailed books and records; (3) knowingly falsify books and\nrecords; and (4) knowingly circumvent a system of internal\naccounting controls. Although this Instruction was\nerroneous to the extent that it told jurors that a violation of\nthe FCPA was a rule or regulation of the SEC for the\npurposes of SOX, as discussed supra, there is no dispute that\nInstruction 21 correctly described the provisions of the\nFCPA. See 15 U.S.C. § 78dd-1(a) (anti-bribery); id.\n§ 78m(b)(2)(A) (keeping accurate books and records) &\n(b)(5) (“knowingly circumvent . . . a system of internal\naccounting controls” and “knowingly falsify any book,\nrecord, or account.”). Thus, on the Tameny claim, jurors\nwere instructed that Wadler had to show that he had\nreasonably believed Bio-Rad violated the provisions of the\nFCPA listed in Instruction 21 and that Bio-Rad discharged\nhim for disclosing that belief.\n\n Assuming, as we must, that the jury correctly followed\nthe cross-references in the instructions, Westinghouse Elec.\nCorp. v. Gen. Circuit Breaker & Elec. Supply Inc., 106 F.3d\n894, 901 (9th Cir. 1997), it necessarily found that Bio-Rad\nviolated Tameny with respect to the alleged FCPA\nviolations. We have repeatedly held that an instructional\nerror is harmless when the jury necessarily would have\nreached the same verdict under a proper instruction. See\nSnyder v. Freight, Constr., Gen. Drivers, Warehousemen &\nHelpers, Local No. 287, 175 F.3d 680, 688–89, 688 n.12 (9th\nCir. 1999); United States v. Washington, 106 F.3d 1488,\n1490 (9th Cir. 1997) (per curiam); Westinghouse Elec.\nCorp., 106 F.3d at 902. In these circumstances, the SOX\ninstructional error was harmless as to the Tameny verdict\n\f WADLER V. BIO-RAD LABORATORIES 23\n\nbecause Wadler’s Tameny claim—that Bio-Rad retaliated\nagainst him for reporting conduct that he reasonably\nbelieved violated the FCPA—did not depend on SOX.\n\n V.\n\n In sum, on the SOX claim, we VACATE and REMAND\nfor the district court to consider whether a new trial is\nwarranted. On the Tameny claim, we AFFIRM the jury’s\nverdict, which is against the Company only. We also\nAFFIRM the corresponding award of compensatory and\npunitive damages against the Company, except for the\nportion of damages attributable to Dodd-Frank’s doubling\nprovision. As discussed in the memorandum filed this date,\nwe VACATE the Dodd-Frank verdict with instructions to\nthe district court to enter judgment in favor of the Company\nand Schwartz on that claim.\n\n VACATED in part, AFFIRMED in part, and\nREMANDED. The parties shall bear their own costs on\nappeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371775/", "author_raw": "BENNETT, Circuit Judge:"}]}	SUSAN P GRABER	MARK J BENNETT	LESLIE E KOBAYASHI	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594522/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,521		Michael Castro v. Tri Marine Fish Company LLC	2019-02-27	17-35703	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Susan R. Bolton, * District Judge.", "parties": "", "opinions": [{"author": "McKEOWN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMICHAEL D. CASTRO, an individual, No. 17-35703\n Plaintiff-Appellant,\n D.C. No.\n v. 2:17-cv-00008-\n RSL\nTRI MARINE FISH COMPANY LLC, an\nunknown entity; TRI MARINE\nMANAGEMENT COMPANY LLC, an OPINION\nunknown entity; CAPE MENDOCINO\nFISHING LP, an unknown entity;\nCAPE MENDOCINO FISHING LLC, an\nunknown entity; DOES, 1 through 20,\ninclusive,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Western District of Washington\n Robert S. Lasnik, Senior District Judge, Presiding\n\n Argued and Submitted November 8, 2018\n Seattle, Washington\n\n Filed February 27, 2019\n\f2 CASTRO V. TRI MARINE FISH CO.\n\nBefore: M. Margaret McKeown and Michelle T. Friedland,\n Circuit Judges, and Susan R. Bolton, * District Judge.\n\n Opinion by Judge McKeown\n\n\n SUMMARY *\n\n\n Arbitration\n\n The panel reversed in part and vacated in part the district\ncourt’s order treating an order issued by an arbitrator in the\nPhilippines as a foreign arbitral award and confirming the\narbitrator’s order under the New York Convention and the\nConvention Act.\n\n Looking to the essence of the arbitrator’s order, the panel\nheld that the order was not a foreign arbitral award because\nthe parties had already agreed to settle their dispute, and so\nthere was no outstanding dispute to arbitrate when they\nbrought the matter to the arbitrator. In addition, the\npurported arbitration did not follow the parties’ prior\nagreements to arbitrate, nor did it follow Philippine arbitral\nprocedure.\n\n The panel remanded for the district court to\nassess jurisdiction under the Convention Act and—as\n\n\n \n The Honorable Susan R. Bolton, United States District Judge for\nthe District of Arizona, sitting by designation.\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f CASTRO V. TRI MARINE FISH CO. 3\n\nappropriate—venue and any defenses to enforcement of the\nsettlement.\n\n\n COUNSEL\n\nWilliam L. Banning (argued), Banning LLP, Rancho Santa\nFe, California; John W. Merriam, Law Offices of John W.\nMerriam, Seattle, Washington; for Plaintiff-Appellant.\n\nColin J. Folawn (argued) and David Boyajian, Schwabe\nWilliamson & Wyatt P.C., Seattle, Washington, for\nDefendants-Appellees.\n\n\n OPINION\n\nMcKEOWN, Circuit Judge:\n\n Central to the United Nations Convention on the\nRecognition and Enforcement of Foreign Arbitral Awards,\nJune 10, 1958, 21 U.S.T. 2517 (“New York Convention”),\nand related federal law is the principle insulating foreign\narbitral awards from second-guessing by courts. But this\nappeal involves an even more fundamental question—\nwhether we are presented with a foreign arbitral award at all.\nIn the mine run of cases, the answer is uncontroversial:\nwhen it looks, swims, and quacks like an arbitral award, it\ntypically is. Yet, in this unusual appeal, we have an arbitral\naward in name only. There was no dispute to arbitrate, as\nthe parties had fully settled their claims before approaching\nan arbitrator; the purported arbitration consisted of an\nimpromptu meeting in a building lobby; and the\n“proceedings” disregarded the terms of three arbitration\nagreements between the parties and the issuing forum’s\n\f4 CASTRO V. TRI MARINE FISH CO.\n\narbitral rules. We conclude that the resulting order is not an\narbitral award entitled to enforcement under the Convention.\n\n BACKGROUND\n\n In late 2012, Michael Castro moved from the\nPhilippines, where he retains citizenship, to American\nSamoa to live with April Castillo, his fiancé, and her family.\nSeveral months later, Castro was working in a Tri Marine\nwarehouse when Tri Marine offered him a crew position\naboard the F/V Captain Vincent Gann (the “Vessel”), a\nfishing vessel with an imminent departure date. 1 He\naccepted a position as a deck hand.\n\n The day before departing, Castro visited Tri Marine’s\noffices to sign employment paperwork. Castro and Tri\nMarine dispute what was signed that day. Tri Marine\ncontends that Castro signed his employment agreement,\nwhich is consistent with the date typed on the agreement\nitself. Castro insists that before departing he signed only “a\nhalf sheet of paper with a few sentences on it including [a]\npay rate of $3.00 per ton [of fish caught], the name of the\nVessel[,] and a signature line,” and that he did not sign the\nemployment agreement until he appeared before an\narbitrator in February 2014. The employment agreement—\nwhenever Castro signed it—contained a mandatory\narbitration provision applicable to all disputes or claims\narising out of Castro’s employment aboard the Vessel. It\nrequired arbitration to occur in and subject to the procedural\nrules of American Samoa.\n\n\n 1\n Castro sued several entities with alleged interests in the Vessel.\nFor purposes of this appeal, there is no relevant distinction between the\nentities. We refer to them collectively as Tri Marine.\n\f CASTRO V. TRI MARINE FISH CO. 5\n\n On July 30, 2013, approximately two weeks into the\nfishing trip, Castro fell down a set of stairs and severely\ninjured his knee. Castro requested that Tri Marine return\nhim to American Samoa so he could travel to Hawaii for\nmedical care, but Tri Marine instead arranged for Castro’s\ntransport to and medical care in the Philippines. In mid-\nAugust, Castro underwent surgery for a torn anterior cruciate\nligament and a torn meniscus, followed by treatment and\nphysical therapy. Tri Marine paid Castro’s medical\nexpenses and monthly maintenance.\n\n Several months into Castro’s rehabilitation, doctors\ndiagnosed his father with kidney cancer and predicted he\nwould die without surgery. Castro and his family could not\nafford his father’s surgery, so Castro approached Rhodylyn\nDe Torres, a Tri Marine agent in the Philippines, and\nnegotiated a settlement of his disability claims. In exchange\nfor an advance of $5,000, Castro reiterated his assent to the\nemployment agreement’s arbitration and choice of law\nclauses. Shortly after, Castro agreed in principle to release\nfully his claims in exchange for an additional $16,160. 2\n\n After Tri Marine prepared the settlement paperwork,\nCastro met De Torres at her office in Manila to finalize the\nsettlement. Castro speaks only rudimentary English—his\nnative tongue is Tagalog—so Castillo, who has a greater\nproficiency in English, attended the meeting and helped him\nreview the settlement materials. De Torres informed Castro\nin advance that he would be signing release documents to\n\n\n 2\n We use variants of the terms “agree” and “settle” for convenience’s\nsake. We do not suggest any conclusion regarding Castro’s defenses to\nformation and enforcement of the purported settlement. Those defenses\nremain open issues on remand.\n\f6 CASTRO V. TRI MARINE FISH CO.\n\nconclude his case, but not that he would be participating in\nan arbitration.\n\n De Torres and Castro provide divergent accounts of the\nmeeting. De Torres attests that over the course of two hours,\nshe explained the documents to Castro in “Filipino\nlanguage” (presumably, Tagalog), Castro indicated that he\nunderstood, and Castro signed the release documents. She\nalso indicates that she explained, and Castro agreed, that an\narbitrator would review and approve the release documents\n“to make the settlement legal and binding.” Castro disputes\nwhether De Torres translated documents into Tagalog,\nexplained that he would be foregoing future legal claims by\nsigning them, or informed him that he would be participating\nin arbitration. According to Castro, De Torres told him they\nwould go to a different office merely to pick up the\nsettlement check and execute paperwork acknowledging\nreceipt.\n\n Although it is disputed when in the day this happened,\nCastro executed a release of Tri Marine “from any and all\nliability or claims . . . arising out of or in any way connected\nwith an illness, incident, and/or incidents aboard the [Vessel]\non or about 30 July, 2013.” Castro acknowledged and\nreleased his right to future maintenance and cure in exchange\nfor the settlement amount. Like Castro’s employment\nagreement (and as he reiterated when accepting his advance\npayment), the release provided that disputes over its validity\nand enforceability would be arbitrated in American Samoa.\n\n After the parties had agreed to the terms of the release, a\nTri Marine agent ushered Castro and Castillo to an office\nbuilding that housed the National Conciliation and\nMediation Board. De Torres had led Castro to believe that\nthey would merely pick up the settlement disbursement and\nacknowledge receipt. Tri Marine now contends that they\n\f CASTRO V. TRI MARINE FISH CO. 7\n\nwent to the Board’s office to submit their dispute to\narbitration. Gregorio Biares, an accredited maritime\nvoluntary arbitrator, met the parties in the lobby and\nintroduced himself as a neutral arbitrator.\n\n The meeting was Castro’s first and only interaction with\nan arbitrator. Seated at a small table in the public lobby,\nsurrounded by strangers entering and leaving the building,\nBiares reviewed the settlement paperwork with Castro.\nBiares attests that he explained the implications of the\nrelease and confirmed in Tagalog that Castro understood the\ndocuments. Castro paints a different picture: Biares\n“hurriedly flipped through the pages showing [Castro] where\nto sign,” emphasized that the settlement was favorable to\nCastro, and misled Castro by characterizing the settlement\nas “just a first payment” and informing Castro that he is\nineligible for protection under the Jones Act.\n\n Although there was no arbitral case filed, Tri Marine\nprovided Biares a “joint motion to dismiss” pursuant to the\nparties’ settlement, accompanied by the release paperwork\nthat Castro had already signed. The two-page joint motion\nto dismiss was the first “filing” in the “case,” which lacks a\ncase number. Biares signed a one-page document, labeled\nan “order,” which recognized the settlement, stated that\nBiares found the settlement “not contrary to law, morals,\ngood customs and public policy,” and dismissed the “case”\nwith prejudice. The order acknowledges that it is the product\nof a “Walk In Settlement” and that the release had already\nbeen “duly signed by both parties” before meeting with\nBiares.\n\n Later treatment revealed that Castro’s initial surgery had\nfailed to graft his anterior cruciate ligament or address his\ntorn meniscus. Facing additional surgery to repair these\nmistakes, Castro sued Tri Marine in Washington state court\n\f8 CASTRO V. TRI MARINE FISH CO.\n\nto recover the additional expenses. Invoking the New York\nConvention, Tri Marine removed the case to federal court\nand moved to confirm the order as a foreign arbitral award.\nThe district court denied Castro’s motion to remand,\nconfirmed the order, and dismissed the case.\n\n ANALYSIS\n\nI. The New York Convention\n\n The New York Convention, to which the United States\nis a party, governs “the recognition and enforcement of\narbitral awards made in the territory of” a foreign state.\nNew York Convention, art. I(1) (emphasis added). Through\nthe Convention and implementing legislation, the United\nStates sought “to encourage the recognition and enforcement\nof commercial arbitration agreements in international\ncontracts and to unify the standards by which agreements to\narbitrate are observed and arbitral awards are enforced in the\nsignatory countries.” Scherk v. Alberto-Culver Co., 417 U.S.\n506, 520 n.15 (1974).\n\n The United States codified its Convention obligations in\nthe Convention Act, 9 U.S.C. §§ 201–08. Rogers v. Royal\nCaribbean Cruise Line, 547 F.3d 1148, 1152–53 (9th Cir.\n2008). Just as the Federal Arbitration Act (“FAA”) affords\nconsiderable deference to domestic arbitral awards, the\nConvention Act does the same for foreign arbitral awards.\nPolimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832, 836 (9th Cir.\n2010). A court must confirm a foreign arbitral award unless\nthe party resisting enforcement meets its “substantial”\nburden of proving one of seven narrowly interpreted\ndefenses. Id.; see 9 U.S.C. § 207 (incorporating the\nConvention’s defenses); New York Convention, art. V\n(listing defenses). The judicial role in this process is\ncircumscribed: “Confirmation under the Convention is a\n\f CASTRO V. TRI MARINE FISH CO. 9\n\nsummary proceeding in nature, which is not intended to\ninvolve complex factual determinations, other than a\ndetermination of the limited statutory conditions for\nconfirmation or grounds for refusal to confirm.” Zeiler v.\nDeitsch, 500 F.3d 157, 169 (2d Cir. 2007).\n\n Yet, before we employ the Convention’s and the\nConvention Act’s substantial protections, the threshold step\nis, of course, to ensure they apply. This interpretive inquiry\nrequires our de novo review. CVS Health Corp. v. Vividus,\nLLC, 878 F.3d 703, 706 (9th Cir. 2017) (statutes); Hosaka v.\nUnited Airlines, Inc., 305 F.3d 989, 993 (9th Cir. 2002)\n(treaties). The key question here is whether there is an\n“arbitral award” to consider. Amazingly, that term is not\ndefined in the Convention Act, which governs only “arbitral\naward[s] falling under the Convention.” 9 U.S.C. § 207.\nCongress defined “falling under the Convention,” id. § 202,\nbut not “arbitral award” or “arbitration.” “Arbitration” and\n“arbitral award” are also undefined in the Convention itself\nand in the FAA, 9 U.S.C. §§ 1–16. See Polimaster, 623 F.3d\nat 836 (“When interpreting the defenses to confirmation of\nan arbitration award under the New York Convention, we\nmay look to authority under the FAA.”).\n\n We therefore interpret the term by applying its common\nmeaning and common sense. Green Tree Fin. Corp.–Ala. v.\nRandolph, 531 U.S. 79, 86 (2000). We also look to the\nAmerican Law Institute’s recent restatement on international\ncommercial arbitration, which offers helpful guidance and\nbackground. See Restatement (Third) U.S. Law of Int’l\nCommercial Arbitration § 1-1 (Am. Law Inst., Tentative\n\f10 CASTRO V. TRI MARINE FISH CO.\n\nDraft No. 2, 2012) (“Restatement TD No. 2”). 3 It sets forth\nseveral helpful definitions:\n\n An “arbitral award” is a decision in writing\n by an arbitral tribunal that sets forth the final\n and binding determination on the merits of a\n claim, defense, or issue, regardless of\n whether that decision resolves the entire\n controversy before the tribunal. . . .\n\n An “arbitral tribunal” is a body consisting of\n one or more persons designated directly or\n indirectly by the parties to an arbitration\n agreement and empowered by them to\n adjudicate a dispute that has arisen between\n or among them.\n\n “Arbitration” is a dispute resolution method\n in which the disputing parties empower an\n arbitral tribunal to decide a dispute in a final\n and binding manner.\n\nId. § 1-1(a)–(c).\n\nII. The Purported Arbitral Award\n\n In a superficial sense, the order issued here resembles an\narbitral award: it was issued by an arbitrator and purports to\n\n 3\n Although the membership has not formally approved the full\nRestatement (Third) of the U.S. Law of International Commercial\nArbitration, the American Law Institute has approved Tentative Draft\nNo. 2, which contains the only sections that we consider here. See\nDiscussion of Restatement of the Law Third, The U.S. Law of\nInternational Commercial Arbitration, 2012 A.L.I. Proceedings 143\n(Am. Law Inst., May 22, 2012).\n\f CASTRO V. TRI MARINE FISH CO. 11\n\naward Castro a monetary remedy and dismiss the “case”\nwith prejudice. But labels and appearances are not\ncontrolling—we evaluate an award by looking to its essence.\nId. § 1-1 cmt. a. Several unique aspects of these proceedings\nlead us to conclude that the order is not an arbitral award\nwithin the meaning of the Convention.\n\n To begin, there was no outstanding dispute to arbitrate\nby the time Castro and Tri Marine sat down with the\narbitrator. Id. § 1-1(c) (“‘Arbitration’ is a dispute resolution\nmethod . . . .”). Integral to the Convention’s conception of\narbitration is the endeavor to resolve a dispute:\n\n [T]he tribunal must be dealing with a genuine\n disagreement to have jurisdiction. Where\n parties appoint an arbitral tribunal after a\n settlement to merely record the settlement in\n the . . . award, there is no “difference”\n between the parties to resolve; the parties\n have already settled the dispute. A\n “difference” is a necessary precondition of an\n “award” in the sense of the New York\n Convention.\n\nYaraslau Kryvoi & Dmitry Davydenko, Consent Awards in\nInternational Arbitration: From Settlement to Enforcement,\n40 Brook. J. Int’l L. 827, 854 (2015); see also Arbitration,\nBlack’s Law Dictionary (10th ed. 2014) (“A dispute-\nresolution process in which . . . neutral third parties . . .\nresolv[e] the dispute.”); A Decree Instituting a Labor Code\nThereby Revising and Consolidating Labor and Social Laws\nto Afford Protection to Labor, Promote Employment and\nHuman Resources Development and Insure Industrial Peace\nBased on Social Justice, Pres. Dec. No. 442 (as amended),\nart. 262 (1974) (Philippine Labor Code permitting\n\f12 CASTRO V. TRI MARINE FISH CO.\n\narbitrators to “hear and decide . . . labor disputes”); Revised\nProcedural Guidelines in the Conduct of Voluntary\nArbitration Proceedings, National Conciliation and\nMediation Board, Rule II § 1(d) (2005) (“Procedural\nGuidelines”) (Philippine rules of voluntary arbitration\ndefining “Voluntary Arbitration” as a “mode of settling\nlabor-management disputes”).\n\n Castro and Tri Marine agreed to settle their dispute, and\nto terms for doing so, before they ever visited an arbitrator.\nIn exchange for a monetary settlement, Castro released Tri\nMarine “from any and all liability or claims . . . arising out\nof or in any way connected with” the July 30, 2013 incident.\nHaving settled their dispute, Castro and Tri Marine had\nnothing to arbitrate. See Restatement TD No. 2 § 1-1(c);\nKryvoi & Davydenko, 40 Brook. J. Int’l L. at 854.\n\n What’s more, the purported arbitration in no way\nfollowed the parties’ prior agreements to arbitrate. Because\n“[a]rbitration is consent-based,” Restatement TD No. 2 § 1-\n1 Reporters’ Note d, the tribunal “derives its jurisdiction and\nremedial powers” from the parties’ assent, id. § 1-1 cmt. b.\nThe employment agreement provided for arbitration in and\nsubject to the procedural rules of American Samoa, the\nadvance payment receipt reiterated the employment\nagreement’s arbitration and choice of law clauses, and even\nthe executed release provided for arbitration in American\nSamoa. The lobby meeting with Biares was a far cry—in\nvenue and law—from the agreed procedure.\n\n To be sure, parties can waive contractual terms, but\nCastro’s conduct hardly demonstrates an intent to arbitrate\nhis dispute in the Philippines. Castro had no dispute. He\nsimply sought to pick up the settlement check and\nacknowledge receipt—which Tri Marine led him to believe\nhe was doing. The setting and surroundings of the lobby sit-\n\f CASTRO V. TRI MARINE FISH CO. 13\n\ndown suggested a coffee date more than an arbitral\nproceeding; little wonder, then, that Castro professed\nignorance that the meeting supposedly constituted\narbitration. These circumstances scarcely demonstrate that\nCastro sought to waive or amend his thrice-written\nagreement to arbitrate disputes in American Samoa. Nor do\nany of the final documents reference waiver of the parties’\nrepeated commitments to arbitrate in American Samoa.\n\n Beyond fidelity to the terms of the arbitration agreement,\nan “arbitrator[] . . . act[s] pursuant to the arbitration law of\nthe arbitral seat . . . and any procedural rules that the parties\nmay have adopted.” Restatement TD No. 2 § 1-1 cmt. c.\nThe parties did not “adopt” any procedural rules apart from\nthose set forth in the three written agreements. The meeting\nalso flouted Philippine arbitral procedure. In the Philippines,\nvoluntary arbitration begins upon receipt of a submission\nagreement signed by both parties. Procedural Guidelines,\nRule IV § 4. No submission agreement was filed here. The\nsubmission agreement must list the specific issues to be\narbitrated. Id., Rule IV § 5. But no arbitrable issues existed\nhere, as the parties had already resolved their dispute. Other\nPhilippine pre-arbitration procedures, such as an initial\nconference, joint formulation of ground rules, and pleadings,\nwere conspicuously absent as well. Id., Rule VI §§ 2, 3, 6,\n8. In sum, the procedure here deviated completely from\ntypical Philippine procedures. This divergence confirms our\nunderstanding that arbitration did not occur.\n\n We conclude that the parties’ free-floating settlement\nagreement and order did not transform into an arbitral award\nsimply because the parties convened with an arbitrator. Tri\nMarine may seek to enforce the release as a matter of\ncontract, but the order approving the settlement is not an\narbitral award under the Convention.\n\f14 CASTRO V. TRI MARINE FISH CO.\n\n Importantly, our decision does not encroach on the\ncommon practice of reducing settlements reached during\narbitration into arbitral awards, frequently termed “consent\nawards.” Many international arbitral rules empower\narbitrators—upon the parties’ request—to enter consent\nawards. See Margaret L. Moses, The Principles and\nPractice of International Commercial Arbitration 205 (3d\ned. 2017). Consent awards encourage settlement by\nconferring substantial benefits—including the Convention’s\nprotections—upon parties that obtain them. See Nigel\nBlackaby et al., Redfern and Hunter on International\nArbitration §§ 9.33, 9.34, 9.36 (Student ed. 2009) (noting\nthat several international arbitral bodies embrace consent\nawards).\n\n Our decision does not disturb this practice for a simple\nreason: it did not occur here. “Timing is important for a\nsettlement agreement to become an award. Usually a\nconsent award becomes possible after a tribunal has been\nconstituted. . . . Otherwise the tribunal will have no right to\nrender a consent award.” Kryvoi & Davydenko, 40 Brook.\nJ. Int’l L. at 842–43. 4 Philippine, American, and broadly\napplicable international rules impose this temporal\nlimitation on consent awards. Philippine arbitrators may\nissue a consent award “[i]n the event that the parties finally\nsettle their dispute during the pendency of the arbitration\nproceedings.” Procedural Guidelines, Rule VII § 4\n(emphasis added). Leading American and international\narbitration groups espouse the same limitation. See Am.\nArbitration Ass’n, Commercial Arbitration Rules and\nMediation Procedures R-48(a) (2013); United Nations\n\n 4\n The authors characterize their article as “the first major study of\nthe legal regime governing consent awards in international arbitration.”\nKryvoi & Davydenko, 40 Brook. J. Int’l L. at 828.\n\f CASTRO V. TRI MARINE FISH CO. 15\n\nCommission on International Trade Law, Model Law on\nInternational Commercial Arbitration, art. 30(1) (2006).\nEven the two cases involving consent awards cited favorably\nby Tri Marine are consistent with this timing requirement.\nSee United States v. Sperry Corp., 493 U.S. 52, 56–57 (1989)\n(parties initiated arbitration, then settled, and then obtained\na consent award); Transocean Offshore Gulf of Guinea VII\nLtd. v. Erin Energy Corp., No. CV H-17-2623, 2018 WL\n1251924, at 1 (S.D. Tex. Mar. 12, 2018) (same). The\ntiming here was backwards—Castro and Tri Marine settled\nand then sought to arbitrate. The result is not a consent\naward.\n\n Finally, we emphasize that our decision does not elevate\nform over function. Tri Marine protests, for instance, that to\nobtain a proper consent award, it could have simply initiated\narbitral proceedings before finalizing the settlement.\nPerhaps, but not for nothing. An essential aspect of\narbitration is each party’s inability to unilaterally withdraw\nfrom proceedings. Restatement TD No. 2 § 1-1 cmt. c.\nOther, “[c]ollaborative forms of [alternative dispute\nresolution],” by contrast, “require the parties’ continuing\nwillingness to participate.” Id. § 1-1 Reporters’ Note c.\nAccordingly, “the weight of decisional authority and\ninternational consensus” does not treat collaborative\nprocesses, such as mediation, as “arbitration” under the\nConvention. Id. Had the arbitrator here balked—for\ninstance, by ordering a hearing on voluntariness or enforcing\nthe venue provision pointing to American Samoa—Tri\nMarine could have taken its settlement and gone home.\nAlthough perhaps a modest hurdle, the modicum of\nformality required for a proceeding to constitute arbitration\nis no empty ritual.\n\f16 CASTRO V. TRI MARINE FISH CO.\n\nIII. Remand\n\n Because the district court treated the order as a foreign\narbitral award, it proceeded in summary fashion under the\nConvention. For example, it weighed evidence and resolved\ngenuine disputes of material fact in favor of Tri Marine,\nthereby rejecting out of hand Castro’s coercion defense. In\nlight of our conclusion, the district court’s approach was in\nerror. We vacate in full the order confirming the arbitral\naward, including the ruling on the validity of the seaman’s\nrelease.\n\n At oral argument, Castro suggested for the first time that\nthe absence of an arbitral award calls into question federal\njurisdiction. The Convention Act permits removal of cases\nthat “relate[] to an arbitration agreement or award falling\nunder the Convention.” 9 U.S.C. § 205. Although the order\nhere is not an arbitral award, the subject matter of the case\nmay nonetheless “relate[] to an arbitration agreement.” Id.;\nsee Infuturia Glob. Ltd. v. Sequus Pharm., Inc., 631 F.3d\n1133, 1138 (9th Cir. 2011) (“The phrase ‘relates to’ is\nplainly broad . . . .”).\n\n In light of the parties’ failure to brief this issue on appeal,\nwe take no position on the ultimate disposition of this\njurisdictional question. We remand for the district court to\nassess jurisdiction and—as appropriate—venue and any\ndefenses to enforcement.\n\n CONCLUSION\n\n We review foreign arbitral awards deferentially, but we\ndo not blind ourselves to reality when presented with an\norder purporting to be one. To cloak its free-floating\nsettlement agreement in the New York Convention’s\nfavorable enforcement regime, Tri Marine asked an\n\f CASTRO V. TRI MARINE FISH CO. 17\n\narbitrator to wave his wand and transform the settlement into\nan arbitral award. That is not sufficient to produce an award\nsubject to the Convention.\n\n REVERSED IN PART, VACATED IN PART, AND\nREMANDED.\n\n Tri Marine shall bear costs on appeal.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371774/", "author_raw": "McKEOWN, Circuit Judge:"}]}	M MARGARET MCKEOWN	MICHELLE T FRIEDLAND	SUSAN R BOLTON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594521/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
9,022,992	Michael D. CASTRO, an individual v. TRI MARINE FISH COMPANY LLC, an unknown entity Tri Marine Management Company LLC, an unknown entity Cape Mendocino Fishing LP, an unknown entity Cape Mendocino Fishing LLC, an unknown entity Does, 1 through 20, inclusive	Castro v. Tri Marine Fish Co.	2019-02-27	No. 17-35703	U.S. Court of Appeals for the Ninth Circuit	{"judges": "McKeown", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016230/", "author_raw": ""}]}	MCKEOWN	MCKEOWN		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/9022992/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,595,057		Yassir Fazaga v. Fbi	2019-02-28	12-56867	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges and George Caram Steeh III,* Senior District Judge.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nYASSIR FAZAGA; ALI UDDIN MALIK; No. 12-56867\nYASSER ABDELRAHIM,\n Plaintiffs-Appellees, D.C. No.\n 8:11-cv-00301-\n v. CJC-VBK\n\nFEDERAL BUREAU OF\nINVESTIGATION; CHRISTOPHER A.\nWRAY, Director of the Federal\nBureau of Investigation, in his\nofficial capacity; PAUL DELACOURT,\nAssistant Director in Charge, Federal\nBureau of Investigation’s Los\nAngeles Division, in his official\ncapacity; PAT ROSE; KEVIN\nARMSTRONG; PAUL ALLEN,\n Defendants,\n\n and\n\nBARBARA WALLS; J. STEPHEN\nTIDWELL,\n Defendants-Appellants.\n\f2 FAZAGA V. WALLS\n\nYASSIR FAZAGA; ALI UDDIN MALIK; No. 12-56874\nYASSER ABDELRAHIM,\n Plaintiffs-Appellees, D.C. No.\n 8:11-cv-00301-\n v. CJC-VBK\n\nFEDERAL BUREAU OF\nINVESTIGATION; CHRISTOPHER A.\nWRAY, Director of the Federal\nBureau of Investigation, in his\nofficial capacity; PAUL DELACOURT,\nAssistant Director in Charge, Federal\nBureau of Investigation’s Los\nAngeles Division, in his official\ncapacity; J. STEPHEN TIDWELL;\nBARBARA WALLS,\n Defendants,\n\n and\n\nPAT ROSE; KEVIN ARMSTRONG;\nPAUL ALLEN,\n Defendants-Appellants.\n\f FAZAGA V. WALLS 3\n\nYASSIR FAZAGA; ALI UDDIN MALIK; No. 13-55017\nYASSER ABDELRAHIM,\n Plaintiffs-Appellants, D.C. No.\n 8:11-cv-00301-\n v. CJC-VBK\n\nFEDERAL BUREAU OF\nINVESTIGATION; CHRISTOPHER A. OPINION\nWRAY, Director of the Federal\nBureau of Investigation, in his\nofficial capacity; PAUL DELACOURT,\nAssistant Director in Charge, Federal\nBureau of Investigation’s Los\nAngeles Division, in his official\ncapacity; J. STEPHEN TIDWELL;\nBARBARA WALLS; PAT ROSE; KEVIN\nARMSTRONG; PAUL ALLEN; UNITED\nSTATES OF AMERICA,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Central District of California\n Cormac J. Carney, District Judge, Presiding\n\n Argued and Submitted December 7, 2015\n Pasadena, California\n\n Filed February 28, 2019\n\f4 FAZAGA V. WALLS\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\nJudges and George Caram Steeh III,* Senior District Judge.\n\n Opinion by Judge Berzon\n\n\n SUMMARY*\n\n\n Constitutional Law / Foreign Intelligence\n Surveillance Act\n\n The panel affirmed in part and reversed in part the district\ncourt’s judgment in favor of the United States, the FBI, and\nfederal officials in a putative class action alleging that an FBI\ninvestigation involved unlawful searches and anti-Muslim\ndiscrimination.\n\n Plaintiffs are three Muslim residents of Southern\nCalifornia who alleged that the FBI paid a confidential\ninformant to conduct a covert surveillance program that\ngathered information about Muslims based solely on their\nreligious identity. Plaintiffs asserted eleven claims, which\nfell into two categories: claims alleging unconstitutional\nsearches, and claims alleging unlawful religious\ndiscrimination. The district court dismissed all but one of\nplaintiffs’ claims on the basis of the state secrets privilege,\n\n\n \n The Honorable George Caram Steeh III, Senior District Judge for\nthe U.S. District Court for the Eastern District of Michigan, sitting by\ndesignation.\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f FAZAGA V. WALLS 5\n\nand allowed only the Foreign Intelligence Surveillance Act\n(“FISA”) claim against the FBI Agent Defendants to proceed.\n\n The panel held that some of the claims the district court\ndismissed on state secret grounds should not have been\ndismissed outright. The panel further held that the district\ncourt should have reviewed any state secrets evidence\nnecessary for a determination of whether the alleged\nsurveillance was unlawful following the secrecy-protective\nprocedure set forth in FISA. See 50 U.S.C. § 1806(f).\n\n Section 110 of FISA, codified at 50 U.S.C. § 1810,\ncreates a private right of action for an individual subjected to\nelectronic surveillance in violation of FISA’s procedures.\nConcerning the FISA claim against the Agent Defendants, the\npanel considered three categories of audio and video\nsurveillance called in the complaint: recordings made by the\nFBI informant of conversations to which he was a party;\nrecordings made by the informant of conversations to which\nhe was not a party; and recordings made by devices planted\nby FBI agents. The panel concluded that the Agent\nDefendants were entitled to qualified immunity as to the first\ntwo categories of surveillance. As to the third category of\nsurveillance, the panel held that Agents Allen and Armstrong\nwere not entitled to qualified immunity, but Agents Tidwell,\nWalls, and Rose were entitled to dismissal as to this category\nof surveillance because plaintiffs did not plausibly allege\ntheir involvement in this category of surveillance.\n\n The panel next addressed the remaining claims, which\nwere all dismissed pursuant to the state secrets privilege.\nFirst, the panel held that in determining sua sponte that\nparticular claims warranted dismissal under the state secrets\nprivilege, the district court erred. Second, the panel held that\n\f6 FAZAGA V. WALLS\n\nin enacting FISA, Congress displaced the common law\ndismissal remedy created by the United States v. Reynolds,\n345 U.S. 1 (1953), state secrets privilege as applied to\nelectronic surveillance within FISA’s purview. The panel\nheld that FISA’s § 1806(f) procedures were to be used when\nan aggrieved person affirmatively challenges, in any civil\ncase, the legality of electronic surveillance or its use in\nlitigation, whether the challenge is under FISA itself, the\nConstitution, or any other law. Third, the panel held that the\nplaintiffs were considered “aggrieved” for purposes of FISA.\n\n The panel next considered whether the claims other than\nthe FISA § 1810 claim must be dismissed for reasons other\nthan the state secrets privilege, limited to reasons raised by\nthe defendants’ motions to dismiss.\n\n Addressing plaintiffs’ Fourth Amendment search\nclaims, the panel first held that the expungement relief\nsought by plaintiffs – the expungement of all records\nunconstitutionally obtained and maintained – was available\nunder the Constitution to remedy the alleged constitutional\nviolations. Because the government raised no other argument\nfor dismissal of the Fourth Amendment injunctive relief\nclaim, it should not have been dismissed. Second, the panel\nheld that in light of the overlap between plaintiffs’ Bivens\nclaim and the narrow range of the remaining FISA claims\nagainst the Agent Defendants that can proceed, it was not\nclear whether plaintiffs would continue to press this claim.\nThe panel declined to address whether plaintiffs’ Bivens\nclaim remained available after the Supreme Court’s decision\nin Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and held that on\nremand the district court may determine whether a Bivens\nremedy is appropriate for any Fourth Amendment claim\nagainst the Agent Defendants.\n\f FAZAGA V. WALLS 7\n\n Addressing plaintiffs’ claims arising from their\nallegations that they were targeted for surveillance solely\nbecause of their religion, the panel first held that the First\nAmendment and Fifth Amendment injunctive relief claims\nagainst the official-capacity defendants may go forward.\nSecond, concerning plaintiffs’ Bivens claims seeking\nmonetary damages directly under the First Amendment’s\nEstablishment and Free Exercise Clauses and the equal\nprotection component of the Fifth Amendment’s Due Process\nClause, the panel concluded that the Privacy Act and the\nReligious Freedom and Restoration Act (“RFRA”), taken\ntogether, provided an alternative remedial scheme for some,\nbut not all, of their Bivens claims. As to the remaining Bivens\nclaims, the panel remanded to the district court to determine\nwhether a Bivens remedy was available in light of the\nSupreme Court’s decision in Abbasi. Third, concerning\nplaintiffs’ 42 U.S.C. § 1985(c) claims, alleging that the Agent\nDefendants conspired to deprive plaintiffs of their First and\nFifth Amendment constitutional rights, the panel held that\nunder Abassi, intracorporate liability was not clearly\nestablished at the time of the events in this case and the Agent\nDefendants were therefore entitled to qualified immunity\nfrom liability under § 1985(c). The panel affirmed the district\ncourt’s dismissal on this ground. Fourth, concerning\nplaintiffs’ claims that Agent Defendants and Government\nDefendants violated RFRA by substantially burdening\nplaintiffs’ exercise of religion, and did so without a\ncompelling government interest without the least restrictive\nmeans, the panel held that it was not clearly established in\n2006 or 2007 that defendants’ covert surveillance violated\nplaintiffs’ freedom of religion protected by RFRA. The panel\naffirmed the district court’s dismissal of the RFRA claim as\nto the Agent Defendants because they were not on notice of\na possible RFRA violation. Because the Government\n\f8 FAZAGA V. WALLS\n\nDefendants were not subject to the same qualified immunity\nanalysis and made no arguments in support of dismissing the\nRFRA claim, other than the state secrets privilege, the panel\nheld that the complaint stated a RFRA claim against the\nGovernment Defendants. Fifth, concerning plaintiffs’\nallegation that the FBI violated the Privacy Act by collecting\nand maintaining records describing how plaintiff exercised\ntheir First Amendment rights, the panel held that plaintiffs\nfailed to state a claim because the sole requested remedy –\ninjunctive relief – is unavailable for a claimed violation of\n5 U.S.C. § 552a(e)(7). Sixth, concerning plaintiffs’ claims\nunder the Federal Tort Claims Act (“FTCA”), the panel held\nthat the FTCA judgment bar provision had no application in\nthis case. The panel further held that it could not determine\nthe applicability of the FTCA’s discretionary function\nexception at this stage in the litigation, and that the district\ncourt may make a determination of applicability on remand.\nThe panel declined to discuss whether plaintiffs substantively\nstated claims as to the state laws underlying the FTCA claim.\n\n\n COUNSEL\n\nCarl J. Nichols (argued) and Howard M. Shapiro, Wilmer\nCutler Pickering Hale and Dorr LLP, Washington, D.C.;\nKatie Moran, Wilmer Cutler Pickering Hale and Dorr LLP,\nLos Angeles, California; for Defendants-Appellants/Cross-\nAppellees Barbara Walls and J. Stephen Tidwell.\n\nAlexander H. Cote (argued), Amos A. Lowder, Angela M.\nMachala, and David C. Scheper, Scheper Kim & Harris LLP,\nLos Angeles, California, for Defendants-Appellants/Cross-\nAppellees Pat Rose, Paul Allen, and Kevin Armstrong.\n\f FAZAGA V. WALLS 9\n\nAhilan Arulanantham (argued), Peter Birbring (argued), and\nCatherine A. Wagner, ACLU Foundation of Southern\nCalifornia, Los Angeles, California; Ameena Mirza Qazi and\nFatima Dadabhoy, Council on American-Islamic Relations,\nAnaheim, California; Dan Stormer and Mohammad Tajsar,\nHadsell Stormer Keeny & Renick LLP, Pasadena, California;\nfor Plaintiffs-Appellees/Cross-Appellants.\n\nDouglas N. Letter (argued), Daniel Tenny, and Mark B.\nStern, Appellate Staff; Stephanie Yonekura, Acting United\nStates Attorney; Civil Division, United States Department of\nJustice, Washington, D.C., for Defendants-Appellees Federal\nBureau of Investigation, Christopher A. Wray, and Paul\nDelacourt.\n\nRichard R. Wiebe, Law Office of Richard R. Wiebe, San\nFrancisco, California; Thomas E. Moore III, Royse Law Firm\nPC, Palo Alto, California; David Greene, Andrew Crockner,\nMark Rumold, James S. Tyre, Kurt Opsahl, Lee Tien, and\nCindy Cohn, Electronic Frontier Foundation, San Francisco,\nCalifornia; for Amicus Curiae Electronic Frontier\nFoundation.\n\f10 FAZAGA V. WALLS\n\n OPINION\n\nBERZON, Circuit Judge:\n\n TABLE OF CONTENTS\n\nINTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13\n\nBACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14\n\n I. Factual Background. . . . . . . . . . . . . . . . . . . . . . . . 16\n\n II. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . 21\n\nDISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24\n\n I. The FISA Claim Against the Agent Defendants\n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24\n\n A. Recordings of Conversations to Which Monteilh\n Was a Party. . . . . . . . . . . . . . . . . . . . . . . . . . . 31\n\n B. Recordings of Conversations in the Mosque\n Prayer Hall to Which Monteilh Was Not a Party\n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33\n\n C. Recordings Made by Planted Devices. . . . . . . 40\n\n II. The State Secrets Privilege and FISA Preemption\n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43\n\n A. The State Secrets Privilege. . . . . . . . . . . . . . . 46\n\f FAZAGA V. WALLS 11\n\n B. The District Court’s Dismissal of the Search\n Claims Based on the State Secrets Privilege\n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48\n\n C. FISA Displacement of the State Secrets Privilege\n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52\n\n D. Applicability of FISA’s § 1806(f) Procedures to\n Affirmative Legal Challenges to Electronic\n Surveillance. . . . . . . . . . . . . . . . . . . . . . . . . . . 62\n\n E. Aggrieved Persons. . . . . . . . . . . . . . . . . . . . . . 71\n\nIII. Search Claims. . . . . . . . . . . . . . . . . . . . . . . . . 72\n\n A. Fourth Amendment Injunctive Relief Claim\n Against the Official-Capacity Defendants. . . . 72\n\n B. Fourth Amendment Bivens Claim Against the\n Agent Defendants.. . . . . . . . . . . . . . . . . . . . . . 76\n\nIV. Religion Claims. . . . . . . . . . . . . . . . . . . . . . . . 78\n\n A. First Amendment and Fifth Amendment\n Injunctive Relief Claims Against the Official-\n Capacity Defendants. . . . . . . . . . . . . . . . . . . . 78\n\n B. First Amendment and Fifth Amendment Bivens\n Claims Against the Agent Defendants. . . . . . . 79\n\n C. 42 U.S.C. § 1985(3) Claims Against the Agent\n Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84\n\f12 FAZAGA V. WALLS\n\n D. Religious Freedom Restoration Act Claim\n Against the Agent Defendants and Government\n Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87\n\n E. Privacy Act Claim Against the FBI. . . . . . . . . 92\n\n F. FTCA Claims. . . . . . . . . . . . . . . . . . . . . . . . . . 94\n\n 1. FTCA Judgment Bar. . . . . . . . . . . . . . . . . 95\n\n 2. FTCA Discretionary Function Exception\n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96\n\n V. Procedures on Remand. . . . . . . . . . . . . . . . . . . . . 97\n\nCONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102\n\f FAZAGA V. WALLS 13\n\nBERZON, Circuit Judge:\n\n INTRODUCTION\n\n Three Muslim residents of Southern California allege that,\nfor more than a year, the Federal Bureau of Investigation\n(“FBI”) paid a confidential informant to conduct a covert\nsurveillance program that gathered information about\nMuslims based solely on their religious identity. The three\nplaintiffs filed a putative class action against the United\nStates, the FBI, and two FBI officers in their official\ncapacities (“Government” or “Government Defendants”), and\nagainst five FBI agents in their individual capacities (“Agent\nDefendants”). Alleging that the investigation involved\nunlawful searches and anti-Muslim discrimination, they\npleaded eleven constitutional and statutory causes of action.1\n\n The Attorney General of the United States asserted the\nstate secrets privilege with respect to three categories of\nevidence assertedly at issue in the case, and the Government\nmoved to dismiss the discrimination claims pursuant to that\nprivilege. The Government expressly did not move to dismiss\nthe Fourth Amendment and Foreign Intelligence Surveillance\nAct (“FISA”) unlawful search claims based on the privilege.\nBoth the Government and the Agent Defendants additionally\nmoved to dismiss Plaintiffs’ discrimination and unlawful\nsearch claims based on arguments other than the privilege.\n\n 1\n Specifically, the Plaintiffs alleged violations of the First\nAmendment’s Establishment Clause and Free Exercise Clauses; the\nReligious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.; the equal\nprotection component of the Fifth Amendment’s Due Process Clause; the\nPrivacy Act, 5 U.S.C. § 552a; the Fourth Amendment; the Foreign\nIntelligence Service Act, 50 U.S.C. § 1810; and the Federal Tort Claims\nAct, 28 U.S.C. § 1346.\n\f14 FAZAGA V. WALLS\n\n The district court dismissed all but one of Plaintiffs’\nclaims on the basis of the state secrets privilege—including\nthe Fourth Amendment claim, although the Government\nDefendants had not sought its dismissal on privilege grounds.\nThe district court allowed only the FISA claim against the\nAgent Defendants to proceed. Plaintiffs appeal the dismissal\nof the majority of their claims, and the Agent Defendants\nappeal the denial of qualified immunity on the FISA claim.\n\n We conclude that some of the claims dismissed on state\nsecrets grounds should not have been dismissed outright.\nInstead, the district court should have reviewed any state\nsecrets evidence necessary for a determination of whether the\nalleged surveillance was unlawful following the secrecy-\nprotective procedure set forth in FISA. See 50 U.S.C.\n§ 1806(f). After addressing Defendants’ other arguments for\ndismissing Plaintiffs’ claims, we conclude that some of\nPlaintiffs’ allegations state a claim while others do not.\nAccordingly, we remand to the district court for further\nproceedings on the substantively stated claims.\n\n BACKGROUND\n\n At this stage in the litigation, we “construe the complaint\nin the light most favorable to the plaintiff[s], taking all [their]\nallegations as true and drawing all reasonable inferences from\nthe complaint in [their] favor.” Doe v. United States, 419 F.3d\n1058, 1062 (9th Cir. 2005). “Conclusory allegations and\nunreasonable inferences, however, are insufficient to defeat\na motion to dismiss.” Sanders v. Brown, 504 F.3d 903, 910\n(9th Cir. 2007).\n\n Plaintiffs are three Muslims who were residents of\nSouthern California: Sheikh Yassir Fazaga, Ali Uddin Malik,\n\f FAZAGA V. WALLS 15\n\nand Yasser AbdelRahim. Fazaga was, at the times relevant to\nthis litigation, an imam at the Orange County Islamic\nFoundation (“OCIF”), a mosque in Mission Viejo, California.\nMalik and AbdelRahim are practicing Muslims who regularly\nattended religious services at the Islamic Center of Irvine\n(“ICOI”).\n\n The complaint sought relief against the United States,\nthe FBI, and two federal officials named in their\nofficial capacities, as well as five individual Agent\nDefendants—Kevin Armstrong, Paul Allen, J. Stephen\nTidwell, Barbara Walls, and Pat Rose—named in their\nindividual capacities. Armstrong and Allen were FBI Special\nAgents assigned to the Orange County areas; Tidwell was the\nAssistant Director in Charge of the FBI’s Los Angeles Field\nOffice from August 2005 to December 2007; Walls was the\nSpecial Agent in Charge of the FBI’s Santa Ana branch\noffice, a satellite office of the FBI’s Los Angeles field office;\nand Rose was a Special Agent assigned to the FBI’s Santa\nAna branch office.\n\n Because of the sensitivity of the issues in this case, we\nparticularly stress the usual admonition that accompanies\njudicial determination on motions to dismiss a complaint: the\nfacts recited below come primarily from Plaintiffs’\nallegations in their complaint.2 The substance of those\nallegations has not been directly addressed by the defendants.\nAt this point in the litigation, the truth or falsity of the\nallegations therefore is entirely unproven.\n\n\n\n 2\n In addition to the facts alleged in the complaint, this opinion at some\npoints refers to facts contained in two public declarations submitted by the\nGovernment in support of its invocation of the state secrets privilege.\n\f16 FAZAGA V. WALLS\n\nI. Factual Background\n\n For at least fourteen months in 2006 and 2007, the FBI\npaid a confidential informant named Craig Monteilh to gather\ninformation as part of a counterterrorism investigation known\nas Operation Flex. Plaintiffs allege that Operation Flex was\na “dragnet surveillance” program, the “central feature” of\nwhich was to “gather information on Muslims.”3\n\n At some point before July 2006, Stephen Tidwell, then\nthe Assistant Director in Charge of the FBI’s Los Angeles\nField Office, authorized first the search for an informant and\nlater the selection of Monteilh as that informant. Once\nselected, Monteilh was supervised by two FBI handlers,\nSpecial Agents Kevin Armstrong and Paul Allen.\n\n In July 2006, Monteilh began attending ICOI. As\ninstructed by Allen and Armstrong, Monteilh requested a\nmeeting with ICOI’s imam, represented that he wanted to\nconvert to Islam, and later publicly declared his embrace of\nIslam at a prayer service. Monteilh subsequently adopted the\nname Farouk al-Aziz and began visiting ICOI daily, attending\nprayers, classes, and special events. He also visited “with\nsome regularity” several other large mosques in Orange\nCounty.\n\n\n\n\n 3\n In a public declaration, the FBI frames Operation Flex differently,\ncontending that it “focused on fewer than 25 individuals and was directed\nat detecting and preventing possible terrorist attacks.” The FBI maintains\nthat the goal of Operation Flex “was to determine whether particular\nindividuals were involved in the recruitment and training of individuals in\nthe United States or overseas for possible terrorist activity.”\n\f FAZAGA V. WALLS 17\n\n Armstrong and Allen closely supervised Monteilh during\nthe course of Operation Flex, explaining to him the\nparameters and goals of the investigation. Monteilh was“to\ngather information on Muslims in general,” using\ninformation-gathering and surveillance tactics. The agents\nprovided him with the tools to do so, including audio and\nvideo recording devices. They also gave Monteilh general\ngoals, such as obtaining contact information from a certain\nnumber of Muslims per day, as well as specific tasks, such as\nentering a certain house or having lunch with a particular\nperson. Sometimes, Allen and Armstrong prepared photo\narrays with hundreds of Muslim community members and\nasked Monteilh to arrange the photos from most to least\ndangerous.\n\n Armstrong and Allen did not, however, limit Monteilh to\nspecific targets. Rather, “they repeatedly made clear that they\nwere interested simply in Muslims.” Allen told Monteilh,\n“We want to get as many files on this community as\npossible.” To the extent Allen and Armstrong expressed an\ninterest in certain targets, it was in particularly religious\nMuslims and persons who might influence young Muslims.\nWhen Monteilh’s surveillance activities generated\ninformation on non-Muslims, the agents set that information\naside.\n\n In accordance with his broad directive, Monteilh engaged\nwith a wide variety of individuals. As instructed by his\nhandlers, he attended classes at the mosque, amassed\ninformation on Muslims’ charitable giving, attended Muslim\nfundraising events, collected information on community\nmembers’ travel plans, attended lectures by Muslim scholars,\nwent to daily prayers, memorized certain verses from the\nQuran and recited them to others, encouraged people to visit\n\f18 FAZAGA V. WALLS\n\n“jihadist” websites, worked out with targeted people at a gym\nto get close to them, and sought to obtain compromising\ninformation that could be used to pressure others to become\ninformants. He also collected the names of board members,\nimams, teachers, and other leadership figures at the mosques,\nas well as the license plate numbers of cars in the mosque\nparking lots during certain events.\n\n Virtually all of Monteilh’s interactions with Muslims\nwere recorded. Monteilh used audio and video recording\ndevices provided to him by the agents, including a cellphone,\ntwo key fobs with audio recording capabilities, and a camera\nhidden in a button on his shirt. He recorded, for example, his\ninteractions with Muslims in the mosques, which were\ntranscribed and reviewed by FBI officials. He also recorded\nmeetings and conversations in the mosque prayer hall to\nwhich he was not a party. He did so by leaving his\npossessions behind, including his recording key fob, as\nthough he had forgotten them or was setting them down while\ndoing other things. Monteilh told Allen and Armstrong in\nwritten reports that he was recording conversations in this\nmanner. The agents never told him to stop this practice, and\nthey repeatedly discussed with Monteilh the contents of the\nrecordings.\n\n Armstrong and Allen occasionally instructed Monteilh to\nuse his secret video camera for specific purposes, such as\ncapturing the internal layout of mosques and homes. They\nalso told Monteilh to obtain the contact information of people\nhe met, and monitored his email and cellphone to obtain the\nemail addresses and phone numbers of the people with whom\nhe interacted.\n\f FAZAGA V. WALLS 19\n\n Although Monteilh spent the majority of his time at ICOI,\nhe conducted surveillance and made audio recordings in at\nleast seven other mosques during the investigation. During\nMonteilh’s fourteen months as an informant for Operation\nFlex, the FBI obtained from him hundreds of phone numbers;\nthousands of email addresses; background information on\nhundreds of individuals; hundreds of hours of video\nrecordings of the interiors of mosques, homes, businesses,\nand associations; and thousands of hours of audio recordings\nof conversations, public discussion groups, classes, and\nlectures.\n\n In addition to the surveillance undertaken directly by\nMonteilh, Allen and Armstrong told Monteilh that electronic\nsurveillance equipment had been installed in at least eight\nmosques in the area, including ICOI. The electronic\nsurveillance equipment installed at the Mission Viejo mosque\nwas used to monitor Plaintiff Yassir Fazaga’s conversations,\nincluding conversations held in his office and other parts of\nthe mosque not open to the public.\n\n At the instruction of Allen and Armstrong, Monteilh took\nextensive handwritten notes each day about his activities and\nthe surveillance he was undertaking. Allen and Armstrong\nmet with Monteilh roughly twice each week to discuss his\nassignments, give him instructions, receive his daily notes,\nupload his recordings, and give him fresh devices. Monteilh\nwas also required to call either Allen or Armstrong each day\nto apprise them of his activities. They told Monteilh that his\ndaily notes were read by their supervisors.\n\n The operation began to unravel when, in early 2007,\nAllen and Armstrong instructed Monteilh to begin more\npointedly asking questions about jihad and armed conflict and\n\f20 FAZAGA V. WALLS\n\nto indicate his willingness to engage in violence.\nImplementing those instructions, Monteilh told several people\nthat he believed it was his duty as a Muslim to take violent\naction and that he had access to weapons. Several ICOI\nmembers reported Monteilh to community leaders. One of the\ncommunity leaders then called the FBI to report what\nMonteilh was saying, and instructed concerned ICOI\nmembers to call the Irvine Police Department, which they\ndid. ICOI sought a restraining order against Monteilh, which\nwas granted in June 2007.\n\n Around the same time, Allen and Armstrong told\nMonteilh that Barbara Walls, then Assistant Special Agent in\nCharge of the FBI’s Santa Ana office, no longer trusted him\nand wanted him to stop working for the FBI. In October\n2007, Monteilh was told that his role in Operation Flex was\nover. At one of the final meetings between Monteilh and\nAgents Allen and Armstrong, Walls was present. She warned\nMonteilh not to tell anyone about the operation.\n\n Monteilh’s identity as an informant was revealed in\nFebruary 2009 in connection with a criminal prosecution for\nnaturalization fraud of Ahmadullah (or Ahmed) Niazi, one of\nthe ICOI members who had reported Monteilh’s statements\nto the Irvine Police Department. FBI Special Agent Thomas\nRopel testified at a bail hearing in Niazi’s case that he had\nheard several recordings between Niazi and a confidential\ninformant, and that the informant was the same person Niazi\nhad reported to the police. Ropel’s statements thus indicated\nthat Monteilh was a confidential informant and that he had\nrecorded numerous conversations for the FBI.\n\n Several sources subsequently confirmed that Monteilh\nworked for the FBI, including the FBI and Monteilh himself.\n\f FAZAGA V. WALLS 21\n\nAlthough the FBI has disclosed some information about\nMonteilh’s actions as an informant, including that he created\naudio and video recordings and provided handwritten notes\nto the FBI, the FBI maintains that “certain specific\ninformation” concerning Operation Flex and Monteilh’s\nactivities must be protected in the interest of national\nsecurity.\n\nII. Procedural History\n\n Plaintiffs filed the operative complaint in September\n2011, asserting eleven causes of action, which fall into two\ncategories: claims alleging unconstitutional searches (“search\nclaims”) and claims alleging unlawful discrimination on the\nbasis of, or burdens on, or abridgement of the rights to,\nreligion (“religion claims”). The religion claims allege\nviolations of the First Amendment Religion Clauses, the\nequal protection guarantee of the Due Process Clause of the\nFifth Amendment,4 the Privacy Act, the Religious Freedom\nRestoration Act (“RFRA”), the Foreign Intelligence\nSurveillance Act (“FISA”), and the Federal Tort Claims Act\n(“FTCA”).\n\n Plaintiffs filed the complaint as a putative class action,\nwith the class defined as “[a]ll individuals targeted by\nDefendants for surveillance or information-gathering through\nMonteilh and Operation Flex, on account of their religion,\nand about whom the FBI thereby gathered personally\nidentifiable information.” The complaint sought injunctive\n\n\n 4\n “The liberty protected by the Fifth Amendment’s Due Process\nClause contains within it the prohibition against denying to any person the\nequal protection of the laws.” United States v. Windsor, 570 U.S. 744, 774\n(2013) (citing Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954)).\n\f22 FAZAGA V. WALLS\n\nrelief for the individual Plaintiffs and the class, and damages\nfor themselves as individuals.5 The Agent Defendants moved\nto dismiss the claims against them on various grounds,\nincluding qualified immunity. The Government moved to\ndismiss the amended complaint and for summary judgment,\narguing that Plaintiffs’ statutory and constitutional claims fail\non various grounds unrelated to the state secrets privilege.\n\n The Government also asserted that the religion claims, but\nnot the search claims, should be dismissed under the Reynolds\nstate secrets privilege, see United States v. Reynolds, 345 U.S.\n1 (1953), on the ground that litigation of the religion claims\ncould not proceed without risking the disclosure of certain\nevidence protected by the privilege. The assertion of the state\nsecrets privilege was supported with a previously filed public\ndeclaration from then-U.S. Attorney General Eric Holder; a\npublic declaration from Mark Giuliano, then Assistant\nDirector of the FBI’s Counterterrorism Division; and two\nclassified declarations and a classified supplemental\nmemorandum from Giuliano. The Attorney General asserted\nthe state secrets privilege over three categories of evidence:\n(1) “[i]nformation that could tend to confirm or deny whether\na particular individual was or was not the subject of an FBI\ncounterterrorism investigation”; (2) “[i]nformation that could\ntend to reveal the initial reasons (i.e., predicate) for an FBI\ncounterterrorism investigation of a particular person\n(including in Operation Flex), any information obtained\n\n\n 5\n The proposed class has not been certified. In addition to its\nrelevance to the merits of Plaintiffs’ claims, the information over which\nthe Government asserted the state secrets privilege may also be relevant\nto the decision whether to certify the class. In addition, the scope of\nprivileged evidence needed to litigate the case likely will differ should\nclass certification be granted.\n\f FAZAGA V. WALLS 23\n\nduring the course of such an investigation, and the status and\nresults of the investigation”; and (3) “[i]nformation that could\ntend to reveal whether particular sources and methods were\nused in a counterterrorism investigation.”\n\n In one order, the district court dismissed the FISA claim\nagainst the Government, brought under 50 U.S.C. § 1810,\nconcluding that Congress did not waive sovereign immunity\nfor damages actions under that statute. See Al-Haramain\nIslamic Found., Inc. v. Obama (Al-Haramain II), 705 F.3d\n845, 850–55 (9th Cir. 2012). Plaintiffs do not challenge this\ndismissal. In the same order, the district court permitted\nPlaintiffs’ FISA claim against the Agent Defendants to\nproceed, rejecting the argument that the Agent Defendants\nwere entitled to qualified immunity.\n\n In a second order, the district court dismissed all the other\nclaims in the case on the basis of the Reynolds state secrets\nprivilege—including the Fourth Amendment claim, for which\nthe Government Defendants expressly did not seek dismissal\non that ground. Relying “heavily” on the classified\ndeclarations and supplemental memorandum, the district\ncourt concluded “that the subject matter of this action,\nOperation Flex, involves intelligence that, if disclosed, would\nsignificantly compromise national security.” It held that the\nGovernment Defendants would need to rely on the privileged\nmaterial to defend against Plaintiffs’ claims, and that the\nprivileged evidence was so inextricably tied up with\nnonprivileged material that “the risk of disclosure that further\nlitigation would engender [could not] be averted through\nprotective orders or restrictions on testimony.” The district\ncourt declined to use, as a substitute for dismissal, the in\ncamera, ex parte procedures set out in § 1806(f) of FISA, on\n\f24 FAZAGA V. WALLS\n\nthe ground that FISA’s procedures do not apply to non-FISA\nclaims.\n\n The Agent Defendants timely filed notices of appeal from\nthe denial of qualified immunity on Plaintiffs’ FISA claim.\nThe district court then approved the parties’ stipulation to\nstay all further proceedings related to the remaining FISA\nclaim pending resolution of the Agent Defendants’ appeal\nand, at Plaintiffs’ request, entered partial final judgment\nunder Federal Rule of Civil Procedure 54(b), allowing\nimmediate appeal of the majority of Plaintiffs’ claims. The\nPlaintiffs’ appeal and the Agent Defendants’ appeal from the\ndenial of qualified immunity on the FISA claim were\nconsolidated and are both addressed in this opinion.\n\n DISCUSSION\n\n We begin with the only claim to survive Defendants’\nmotions to dismiss in the district court: the FISA claim\nagainst the Agent Defendants. After addressing the FISA\nclaim, we turn to Plaintiffs’ argument that in cases\nconcerning the lawfulness of electronic surveillance, the ex\nparte and in camera procedures set out in § 1806(f) of FISA\nsupplant the dismissal remedy otherwise mandated by the\nstate secrets evidentiary privilege. See infra Part II. We then\nproceed to evaluate Defendants’ other arguments for\ndismissal of the search and religion claims. See infra Parts\nIII–IV. Finally, we explain the procedures to be followed on\nremand. See infra Part V.\n\nI. The FISA Claim Against the Agent Defendants\n\n Section 110 of FISA, codified at 50 U.S.C. § 1810,\ncreates a private right of action for an individual subjected to\n\f FAZAGA V. WALLS 25\n\nelectronic surveillance in violation of FISA’s procedures. It\nprovides, in pertinent part:\n\n An aggrieved person . . . who has been\n subjected to an electronic surveillance or\n about whom information obtained by\n electronic surveillance of such person has\n been disclosed or used in violation of section\n 1809 of this title shall have a cause of action\n against any person who committed such\n violation . . . .\n\n50 U.S.C. § 1810.\n\n This statutory text refers to another section, § 1809. That\nsection, in turn, proscribes as criminal offenses two types of\nconduct: (1) “intentionally . . . engag[ing] in electronic\nsurveillance under color of law except as authorized by\n[FISA, the Wiretap Act, the Stored Communications Act, or\nthe pen register statute,] or any express statutory\nauthorization,” and (2) “intentionally . . . disclos[ing] or\nus[ing] information obtained under color of law by electronic\nsurveillance, knowing or having reason to know that the\ninformation was obtained through electronic surveillance”\nwithout authorization. 50 U.S.C. § 1809(a).\n\n To determine whether Plaintiffs plausibly allege a cause\nof action under § 1810, we must decide (1) whether Plaintiffs\nare “aggrieved persons” within the meaning of the statute,\n(2) whether the surveillance to which they were subjected\nqualifies as “electronic surveillance,” and (3) whether the\ncomplaint plausibly alleges a violation of 50 U.S.C. § 1809.\n\f26 FAZAGA V. WALLS\n\n An “aggrieved person” is defined as “a person who is the\ntarget of an electronic surveillance or any other person whose\ncommunications or activities were subject to electronic\nsurveillance.” 50 U.S.C. § 1801(k).6 Plaintiffs allege in\nextensive detail in the complaint that they were subjected to\nmany and varied instances of audio and video surveillance.\nThe complaint’s allegations are sufficient if proven to\nestablish that Plaintiffs are “aggrieved persons.”\n\n The complaint also adequately alleges that much of the\nsurveillance as described constitutes “electronic surveillance”\nas defined by FISA. FISA offers four definitions of electronic\nsurveillance. 50 U.S.C. § 1801(f). Only the fourth is\npotentially at stake in this case:\n\n the installation or use of an electronic,\n mechanical, or other surveillance device in the\n United States for monitoring to acquire\n information, other than from a wire or radio\n communication, under circumstances in which\n a person has a reasonable expectation of\n privacy and a warrant would be required for\n law enforcement purposes.\n\nId. § 1801(f)(4) (emphases added). The key question as to the\npresence of “electronic surveillance” under this definition is\nwhether the surveillance detailed in the complaint was\nundertaken in circumstances in which (1) Plaintiffs had a\nreasonable expectation of privacy and (2) a warrant would be\nrequired for law enforcement purposes. If, as the complaint\n\n\n 6\n “‘Person’ means any individual, including any officer or employee\nof the Federal Government, or any group, entity, association, corporation,\nor foreign power.” 50 U.S.C. § 1801(m).\n\f FAZAGA V. WALLS 27\n\nalleges, no warrant was in fact obtained, such electronic\nsurveillance would constitute a violation of § 1809. Id.\n§ 1809(a).\n\n The parties, citing ACLU v. NSA, 493 F.3d 644, 657 n.16,\n683 (6th Cir. 2007), agree that these legal standards from\nFISA—reasonable expectation of privacy and the warrant\nrequirement—are evaluated just as they would be under a\nFourth Amendment analysis. The Agent Defendants argue,\nhowever, that they are entitled to qualified immunity on\nPlaintiffs’ FISA claim. Plaintiffs accept that qualified\nimmunity can apply under FISA but maintain that the Agent\nDefendants are not entitled to immunity.7\n\n The Agent Defendants are entitled to qualified immunity\nfrom damages unless Plaintiffs “plead[] facts showing (1) that\nthe official[s] violated a statutory or constitutional right, and\n(2) that the right was ‘clearly established’ at the time of the\nchallenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735\n(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818\n(1982)). We are permitted to “exercise [our] sound discretion\nin deciding which of the two prongs of the qualified\nimmunity analysis should be addressed first in light of the\ncircumstances in the particular case at hand.” Pearson v.\nCallahan, 555 U.S. 223, 236 (2009). Because, as we conclude\nin infra Part II.E, the applicability of FISA’s alternative\n\n 7\n We have found only one decision, unpublished, addressing whether\nqualified immunity is an available defense to a FISA claim. See Elnashar\nv. U.S. Dep’t of Justice, No. CIV.03-5110(JNE/JSM), 2004 WL 2237059,\nat 5 (D. Minn. Sept. 30, 2004) (dismissing a FISA claim on grounds of\nqualified immunity because there was no evidence the defendant “would\nhave known that the search of [plaintiff’s] apartment would have required\na warrant”), aff’d on other grounds, 446 F.3d 792 (8th Cir. 2006). As the\nissue is not contested, we do not decide it.\n\f28 FAZAGA V. WALLS\n\nprocedures for reviewing state secrets evidence turns on\nwhether the surveillance at issue constitutes “electronic\nsurveillance” within the meaning of FISA,8 we will begin\nwith the first prong, even though we conclude that the Agent\nDefendants are ultimately entitled to qualified immunity on\nthe second prong.\n\n For purposes of qualified immunity, a right is clearly\nestablished if, “at the time of the challenged conduct, ‘[t]he\ncontours of [a] right [are] sufficiently clear’ that every\n‘reasonable official would have understood that what he is\ndoing violates that right.’” al-Kidd, 563 U.S. at 741\n(alterations in original) (quoting Anderson v. Creighton,\n483 U.S. 635, 640 (1987)). “This inquiry . . . must be\nundertaken in light of the specific context of the case, not as\na broad general proposition.” Saucier v. Katz, 533 U.S. 194,\n201 (2001). “We do not require a case directly on point, but\nexisting precedent must have placed the statutory or\nconstitutional question beyond debate.” al-Kidd, 563 U.S. at\n741.\n\n “The operation of [the qualified immunity] standard,\nhowever, depends substantially upon the level of generality\nat which the relevant ‘legal rule’ is to be identified.”\nAnderson, 483 U.S. at 639. Often, whether a right is “clearly\nestablished” for purposes of qualified immunity will turn on\nthe legal test for determining whether that right has been\n\n 8\n Again, as we noted above, “electronic surveillance” as defined by\nFISA must fall under one of four types of government action. 50 U.S.C.\n§ 1801(f). The relevant one for our purposes involves “the installation or\nuse of an electronic, mechanical, or other surveillance device . . . under\ncircumstances in which a person has a reasonable expectation of privacy\nand a warrant would be required for law enforcement purposes.” Id.\n§ 1801(f)(4).\n\f FAZAGA V. WALLS 29\n\nviolated. For claims of excessive force, for example, “[i]t is\nsometimes difficult for an officer to determine how the\nrelevant legal doctrine . . . will apply to the factual situation\nthe officer confronts.” Saucier, 533 U.S. at 205. “The\ncalculus of reasonableness must embody allowance for the\nfact that police officers are often forced to make split-second\njudgments—in circumstances that are tense, uncertain, and\nrapidly evolving—about the amount of force that is necessary\nin a particular situation.” Graham v. Connor, 490 U.S. 386,\n396–97 (1989). By contrast, “[w]ith few exceptions, the\nquestion whether a warrantless search of a home is reasonable\nand hence constitutional must be answered no,” Kyllo v.\nUnited States, 533 U.S. 27, 31 (2001), as “the Fourth\nAmendment has drawn a firm line at the entrance to the\nhouse,” Payton v. New York, 445 U.S. 573, 590 (1980). Thus,\nwhere the test for determining whether the right in question\nhas been violated is framed as a standard, rather than a rule,\nofficials are given more breathing room to make “reasonable\nmistakes.” Saucier, 533 U.S. at 205. In those instances, we\nrequire a higher degree of factual specificity before\nconcluding that the right is “clearly established.” But where\nthe right at issue is clear and specific, officials may not claim\nqualified immunity based on slight changes in the\nsurrounding circumstances.9\n\n\n\n\n 9\n The Supreme Court made a similar observation in an analogous\ncontext—determining whether a state court has unreasonably applied\nclearly established federal law for purposes of habeas review under the\nAntiterrorism and Effective Death Penalty Act: “[T]he range of reasonable\njudgment can depend in part on the nature of the relevant rule. If a legal\nrule is specific, the range may be narrow. . . . Other rules are more general,\nand their meaning must emerge in application over the course of time.”\nYarborough v. Alvarado, 541 U.S. 652, 664 (2004).\n\f30 FAZAGA V. WALLS\n\n To properly approach this inquiry, we consider separately\nthree categories of audio and video surveillance alleged in the\ncomplaint: (1) recordings made by Monteilh of conversations\nto which he was a party; (2) recordings made by Monteilh of\nconversations to which he was not a party (i.e., the recordings\nof conversations in the mosque prayer hall); and\n(3) recordings made by devices planted by FBI agents in\nFazaga’s office and AbdelRahim’s house, car, and phone.10\n\n We conclude that the Agent Defendants are entitled to\ndismissal on qualified immunity grounds of Plaintiffs’ § 1810\nclaim as to the first two categories of surveillance. As to the\nthird category of surveillance, conducted via devices planted\nin AbdelRahim’s house and Fazaga’s office, Allen and\nArmstrong are not entitled to qualified immunity. But\nTidwell, Walls, and Rose are entitled to dismissal as to this\ncategory, because Plaintiffs do not plausibly allege their\ninvolvement in this category of surveillance, and so have not\n\n\n 10\n We note that, in their “Claims for Relief,” under the FISA cause of\naction, Plaintiffs recite that “Defendants, under color of law, acting\nthrough Monteilh” violated FISA (emphasis added). But the complaint\nspecifically recites facts relating to devices allegedly planted directly by\nthe Agent Defendants. Under the Federal Rules of Civil Procedure, it is\nthe facts alleged that circumscribe the reach of the complaint for purposes\nof a motion to dismiss. See Skinner v. Switzer, 562 U.S. 521, 530 (2011).\n\n We also note that there may be a fourth category of surveillance here\nat issue: video recordings of the interiors of individuals’ homes. These\nrecordings are not given meaningful attention in the parties’ briefs, and we\ncannot determine from the complaint if Plaintiffs mean to allege that\nMonteilh video recorded the layouts of houses into which he was invited,\nor that he entered the houses without permission. Although at this stage\nwe do not construe the complaint as asserting claims based on this fourth\ncategory of surveillance, our opinion does not foreclose Plaintiffs from\nclarifying these and other allegations on remand.\n\f FAZAGA V. WALLS 31\n\n“pleaded facts showing . . . that [those] officials violated a\nstatutory or constitutional right.” al-Kidd, 563 U.S. at 735.\n\n A. Recordings of Conversations to Which Monteilh\n Was a Party\n\n A reasonable expectation of privacy exists where “a\nperson ha[s] exhibited an actual (subjective) expectation of\nprivacy,” and “the expectation [is] one that society is\nprepared to recognize as ‘reasonable.’” Katz v. United States,\n389 U.S. 347, 361 (1967) (Harlan, J., concurring); see, e.g.,\nCalifornia v. Ciraolo, 476 U.S. 207, 211) (1986) (describing\nJustice Harlan’s test as the “touchstone of Fourth Amendment\nanalysis”). Generally, an individual “has no privacy interest\nin that which he voluntarily reveals to a government agent,”\na principle known as the invited informer doctrine. United\nStates v. Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013)\n(citing Hoffa v. United States, 385 U.S. 293, 300–02 (1966));\nsee also United States v. Aguilar, 883 F.2d 662, 697–98 (9th\nCir. 1989), superseded on other grounds by statute,\nImmigration Reform and Control Act of 1986, Pub. L. No.\n99-603, 100 Stat. 3359, as recognized in United States v.\nGonzalez-Torres, 309 F.3d 594 (9th Cir. 2002). Plaintiffs\ncontend, however, that the invited informer doctrine does not\napply to the recordings made by Monteilh of conversations to\nwhich he was a party because the surveillance was conducted\nwith discriminatory purpose and therefore in bad faith.\n\n Bad faith of this sort does not, however, implicate the\nreasonable privacy expectation protected by the Fourth\nAmendment or violate the Fourth Amendment’s warrant\nrequirement. There is, to be sure, an important “limitation[]\non the government’s use of undercover informers to infiltrate\nan organization engaging in protected first amendment\n\f32 FAZAGA V. WALLS\n\nactivities”: the government’s investigation must not be\nconducted “for the purpose of abridging first amendment\nfreedoms.” Aguilar, 883 F.2d at 705. But that limitation on\nvoluntary conversations with undercover informants—\nsometimes referred to as a “good faith” requirement,11 e.g.,\nUnited States v. Mayer, 503 F.3d 740, 751 (9th Cir. 2007);\nAguilar, 883 F.2d at 705—is imposed by the First\nAmendment, not the Fourth Amendment. As that\nconstitutional limitation is not grounded in privacy\nexpectations, it does not affect the warrant requirement under\nthe Fourth Amendment.\n\n Under the appropriate Fourth Amendment precepts,\n“[u]ndercover operations, in which the agent is a so-called\n‘invited informer,’ are not ‘searches’ under the Fourth\nAmendment.” Mayer, 503 F.3d at 750 (emphasis added)\n(quoting Aguilar, 883 F.2d at 701). “[A] defendant generally\nhas no privacy interest”—not merely an unreasonable\nprivacy interest—“in that which he voluntarily reveals to a\ngovernment agent.” Wahchumwah, 710 F.3d at 867 (emphasis\nadded). In other words, use of a government informant under\nthe invited informer doctrine—even if not in good faith in the\nFirst Amendment sense—does not implicate the privacy\ninterests protected by the Fourth Amendment. Because our\ninquiry under FISA is confined to whether a reasonable\nexpectation of privacy was violated and whether a warrant\nwas therefore required, see ACLU, 493 F.3d at 657 n.16, 683,\nthe First Amendment-grounded good-faith limitation does not\napply to our current inquiry.\n\n\n\n\n 11\n We use this term in the remainder of this discussion to refer to the\nconstitutional limitation on the use of informants discussed in the text.\n\f FAZAGA V. WALLS 33\n\n Under the invited informer doctrine, Plaintiffs lacked a\nreasonable expectation of privacy in the conversations\nrecorded by Monteilh to which he was a party. The Agent\nDefendants are therefore not liable under FISA for this\ncategory of surveillance.\n\n B. Recordings of Conversations in the Mosque Prayer\n Hall to Which Monteilh Was Not a Party\n\n Plaintiffs did have a privacy-grounded reasonable\nexpectation that their conversations in the mosque prayer hall\nwould not be covertly recorded by an individual who was not\npresent where Plaintiffs were physically located and was not\nknown to be listening in.12 The Agent Defendants are,\nhowever, entitled to qualified immunity with respect to this\ncategory of surveillance under the second prong of the\nqualified immunity standard—whether “the right was ‘clearly\nestablished’ at the time of the challenged conduct.” al-Kidd,\n563 U.S. at 735 (quoting Harlow, 457 U.S. at 818).\n\n Again, the relevant questions here on the merits of the\nFISA and Fourth Amendment issues are whether “a person\nha[s] exhibited an actual (subjective) expectation of privacy,”\nand whether “the expectation [is] one that society is prepared\nto recognize as ‘reasonable.’” Katz, 389 U.S. at 361 (Harlan,\nJ., concurring). To first determine whether an individual has\n“exhibited an actual expectation of privacy,” we assess\nwhether “he [sought] to preserve [something] as private.”\nBond v. United States, 529 U.S. 334, 338 (2000) (alterations\n\n\n 12\n We are not suggesting that the recording have been impermissible\nunder FISA and the Fourth Amendment if the Agent Defendants had\nobtained a warrant based on probable cause. Here, however, no warrant\nwas obtained.\n\f34 FAZAGA V. WALLS\n\nin original) (quoting Smith v. Maryland, 442 U.S. 735, 740\n(1979)). Based on the rules and customs of the mosque, and\nthe allegations in the complaint, we have no trouble\ndetermining that Plaintiffs manifested an actual, subjective\nexpectation of privacy in their conversations there.\n\n The mosque prayer hall is not an ordinary public place. It\nis a site of religious worship, a place for Muslims to come\ntogether for prayer, learning, and fellowship. Plaintiffs allege\nthat the prayer hall “is [a] sacred space where particular rules\nand expectations apply. Shoes are prohibited, one must be in\na state of ablution, discussing worldly matters is discouraged,\nand the moral standards and codes of conduct are at their\nstrongest.” Notably, “[g]ossiping, eavesdropping, or\ntalebearing (namima—revealing anything where disclosure\nis resented) is forbidden.” And ICOI, which Malik and\nAbdelRahim attended, specifically prohibited audio and video\nrecording in the mosque without permission. When, on a rare\noccasion, an outside entity did record an event or a speaker,\nICOI put up signs to notify congregants. Furthermore,\nPlaintiffs explain in their complaint that halaqas, which are\nsmall group meetings during which participants “discuss\ntheology or matters related to the practice of Islam,” are\nunderstood by mosque attendees to be environments that\n“ensure some measure of confidentiality among\nparticipants.”13\n\n These privacy-oriented rules and customs confirm for us\nthat the Plaintiffs held a subjective expectation of privacy in\ntheir conversations among themselves while in the prayer\nhall.\n\n 13\n We understand that description to imply that Monteilh recorded\nconversations that occurred during halaqas in the mosque prayer hall.\n\f FAZAGA V. WALLS 35\n\n That Plaintiffs were not alone in the mosque prayer hall\ndoes not defeat their claim that they manifested an\nexpectation of privacy.14 “Privacy does not require solitude.”\nUnited States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991).\nFor example, “a person can have a subjective expectation that\nhis or her home will not be searched by the authorities, even\nif he or she has invited friends into his or her home.” Trujillo\nv. City of Ontario, 428 F. Supp. 2d 1094, 1102 (C.D. Cal.\n2006), aff’d sub nom. Bernhard v. City of Ontario, 270 F.\nApp’x 518 (9th Cir. 2008). The same principle applies to\ncertain other enclosed locations in which individuals have\nparticular reason to expect confidentiality and repose.15\n\n 14\n The Agent Defendants cite Smith v. Maryland, 442 U.S. at 740–41,\nto support the proposition that the unattended recordings in the mosque\nprayer hall did not invade Plaintiffs’ reasonable expectation of privacy.\nSmith and its progeny do not apply here. Smith concerned a pen register\ninstalled and used by a telephone company, and held that an individual\nenjoys no Fourth Amendment protection “in information he voluntary\nturns over to third parties.” Id. at 743–44. But, as the Fourth Circuit has\nstressed, Smith and the cases relying on it are concerned with “whether the\ngovernment invades an individual’s reasonable expectation of privacy\nwhen it obtains, from a third party, the third party’s records.” United\nStates v. Graham, 824 F.3d 421, 426 (4th Cir. 2016) (en banc) (emphasis\nadded), abrogated on other grounds by Carpenter v. United States, 138 S.\nCt. 2206 (2018). Cases “involv[ing] direct government surveillance\nactivity,” including surreptitiously viewing, listening to, or recording\nindividuals—like the one before us—present a wholly separate question.\nId.\n 15\n Taketa, for example, held that a state employee could hold an\nexpectation of privacy in his office even though the office was shared with\ntwo others. 923 F.2d at 673. “[E]ven ‘private’ business offices are often\nsubject to the legitimate visits of coworkers, supervisors, and the public,\nwithout defeating the expectation of privacy unless the office is ‘so open\nto fellow employees or the public that no expectation of privacy is\nreasonable.’” Id. (quoting O’Connor v. Ortega, 480 U.S. 709, 717–18\n(1987)).\n\f36 FAZAGA V. WALLS\n\n Finally, the case law distinguishes between an expectation\nof privacy in a place and an expectation of privacy as to\nwhether an individual’s conversations or actions in that place\nwould be covertly recorded by persons not themselves present\nin that place.16 The Supreme Court has recently emphasized\nthe significant difference between obtaining information in\nperson and recording information electronically. See\nCarpenter, 138 S. Ct. at 2219 (“Unlike the nosy neighbor\nwho keeps an eye on comings and goings, they are ever alert,\nand their memory is nearly infallible.”). Here, given the\nintimate and religious nature of the space and the express\nprohibition on recording, Plaintiffs have adequately alleged\nthat they subjectively believed their conversations would not\nbe covertly recorded by someone not present in the prayer\nhall for transmission to people not present in the prayer hall.17\n\n Having concluded that Plaintiffs exhibited a subjective\nexpectation of privacy, we now consider whether it was “one\nthat society is prepared to recognize as ‘reasonable.’” Katz,\n389 U.S. at 361 (Harlan, J., concurring). In assessing whether\n\n\n 16\n See also Taketa, 923 F.2d at 676 (“Taketa has no general privacy\ninterest in [his co-worker’s] office, but he may have an expectation of\nprivacy against being videotaped in it.”); Trujillo, 428 F. Supp. 2d at 1102\n(considering the secret installation and use of a video camera in a police\ndepartment’s men’s locker room, and explaining that it was “immaterial”\nthat the plaintiffs changed their clothes in the presence of others, because\n“[a] person can have a subjective expectation of privacy that he or she will\nnot be covertly recorded, even though he or she knows there are other\npeople in the locker room” (emphasis added)).\n 17\n The complaint alleges that Plaintiffs lost “confidence in the mosque\nas a sanctuary” after learning of Monteilh’s surveillance. This feeling of\nthe loss of privacy reinforces the conclusion that Plaintiffs exhibited an\nactual expectation of privacy in their conversations in the mosque before\nthe alleged surveillance took place.\n\f FAZAGA V. WALLS 37\n\nan individual’s expectation of privacy is reasonable, context\nis key. See O’Connor, 480 U.S. at 715. “Although no single\nrubric definitively resolves which expectations of privacy are\nentitled to protection, the analysis is informed by historical\nunderstandings ‘of what was deemed an unreasonable search\nand seizure when [the Fourth Amendment] was adopted.’”\nCarpenter, 138 S. Ct. at 2213–14 (alteration in original)\n(footnote omitted) (quoting Carroll v. United States, 267 U.S.\n132, 149 (1925)). Relevant here is the principle that “the\nextent to which the Fourth Amendment protects people may\ndepend upon where those people are.” Minnesota v. Carter,\n525 U.S. 83, 88 (1998) (emphasis added). We thus “assess the\nnature of the location where [the] conversations were\nseized”—here, the mosque prayer hall. United States v.\nGonzalez, Inc., 412 F.3d 1102, 1116–17 (9th Cir. 2005),\namended on denial of reh’g, 437 F.3d 854 (9th Cir. 2006).\n\n The sacred and private nature of the houses of worship\nPlaintiffs attended distinguishes them from the types of\ncommercial and public spaces in which courts have held that\nindividuals lack a reasonable expectation of privacy.18 United\nStates v. Gonzalez, 328 F.3d 543 (9th Cir. 2003), for example,\nheld that the defendant had no reasonable expectation of\nprivacy in “a large, quasi-public mailroom at a public hospital\nduring ordinary business hours.” Id. at 547. The mailroom\nhad open doors, was visible to the outside via large windows,\nand received heavy foot traffic. Id. In addition to focusing on\nthe physical specifics of the mailroom, Gonzalez emphasized\n\n\n 18\n See, e.g., In re John Doe Trader No. One, 894 F.2d 240, 243–44\n(7th Cir. 1990) (holding that a rule prohibiting tape recorders on the\ntrading floor “aimed at various forms of distracting behavior” and\nexplicitly “designed to protect ‘propriety and decorum’ not privacy” did\nnot support a reasonable expectation of privacy).\n\f38 FAZAGA V. WALLS\n\nthat public hospitals, “by their nature . . . create a diminished\nexpectation of privacy. The use of surveillance cameras in\nhospitals for patient protection, for documentation of medical\nprocedures and to prevent theft of prescription drugs is not\nuncommon.” Id. The mosque prayer halls in this case, by\ncontrast, have no characteristics similarly evidencing\ndiminished expectations of privacy or rendering such\nexpectations unreasonable.19 There are no urgent health or\nsafety needs justifying surveillance. And the use of\nsurveillance equipment at ICOI is not only uncommon, but\nexpressly forbidden.\n\n Our constitutional protection of religious observance\nsupports finding a reasonable expectation of privacy in such\na sacred space, where privacy concerns are acknowledged\nand protected, especially during worship and other religious\nobservance. Cf. Mockaitis v. Harcleroad, 104 F.3d 1522,\n\n 19\n Again, the fact that many people worshipped at the mosque does\nnot render the Plaintiffs’ expectations of privacy in their conversations (or\nat the very least from, their expectations that their conversations would not\nbe covertly recorded) unreasonable. In Gonzalez, Inc., for example, we\nheld that individuals who owned and managed a small, family-run\nbusiness with up to 25 employees had “a reasonable expectation of\nprivacy over the on-site business conversations between their agents.”\n412 F.3d at 1116–17. The Gonzalez family, whose phone calls were\nintercepted, were not alone in their place of business, and their calls could\nhave been overheard by others who were present. But we concluded that\nthey nonetheless had a reasonable expectation of privacy over their\nconversations because they owned the office, had full access to the\nbuilding, and exercised managerial control over the office’s day-to-day\noperations. Id. Similarly, United States v. McIntyre, 582 F.2d 1221 (9th\nCir. 1978), rejected the argument that a police officer lacked a reasonable\nexpectation of privacy over conversations had in his office because his\noffice door was open and a records clerk worked nearby in an adjacent\nroom. Id. at 1224. “A business office need not be sealed to offer its\noccupant a reasonable degree of privacy,” we reasoned. Id.\n\f FAZAGA V. WALLS 39\n\n1533 (9th Cir. 1997) (holding that, based in part on “the\nnation’s history of respect for religion in general,” a priest\nhad a reasonable expectation of privacy in his conversation\nwith an individual during confession), overruled on other\ngrounds by City of Boerne v. Flores, 521 U.S. 507 (1997).\nThus, Plaintiffs’ expectation that their conversations in the\nmosque prayer hall would be confidential among participants\n(unless shared by one of them with others), and so would not\nbe intercepted by recording devices planted by absent\ngovernment agents was objectively reasonable.\n\n Finally, “[w]here the materials sought to be seized may be\nprotected by the First Amendment, the requirements of the\nFourth Amendment must be applied with ‘scrupulous\nexactitude.’” Zurcher v. Stanford Daily, 436 U.S. 547, 564\n(1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)).\n“National security cases,” like the one here, “often reflect a\nconvergence of First and Fourth Amendment values not\npresent in cases of ‘ordinary’ crime.” United States v. U.S.\nDistrict Court (Keith), 407 U.S. 297, 313 (1972). “Fourth\nAmendment protections become the more necessary when the\ntargets of official surveillance may be those suspected of\nunorthodoxy . . . .” Id. at 314.\n\n Accordingly, we hold that Plaintiffs had a reasonable\nexpectation of privacy that their conversations in the mosque\nprayer hall would not be covertly recorded by a government\nagent not party to the conversations.\n\n As of 2006 and 2007, however, no federal or state court\ndecision had held that individuals generally have a reasonable\nexpectation of privacy from surveillance in places of worship.\nOur court had declined to read Katz as established authority\n“for the proposition that a reasonable expectation of privacy\n\f40 FAZAGA V. WALLS\n\nattaches to church worship services open to the public.” The\nPresbyterian Church (U.S.A.) v. United States, 870 F.2d 518,\n527 (9th Cir. 1989). Noting that there was a lack of clearly\nestablished law so concluding, Presbyterian Church held that\nImmigration and Naturalization Service (“INS”) officials\nwere entitled to qualified immunity from a Fourth\nAmendment challenge to undercover electronic surveillance\nof church services conducted without a warrant and without\nprobable cause. Id. No case decided between Presbyterian\nChurch and the incidents giving rise to this case decided\notherwise. And no case decided during that period addressed\ncircumstances more like those here, in which there are some\nspecific manifestations of an expectation of privacy in the\nparticular place of worship. Arguably pertinent was\nMockaitis, but that case concerned the confession booth, not\nthe church premises generally. 104 F.3d at 1533. The\ncircumstances here fall between Presbyterian Church and\nMockaitis, so there was no clearly established law here\napplicable. The Agent Defendants are thus entitled to\nqualified immunity as to this category of surveillance.\n\n C. Recordings Made by Planted Devices\n\n It was, of course, clearly established in 2006 and 2007\nthat individuals have a reasonable expectation of privacy\nfrom covert recording of conversations in their homes, cars,\nand offices, and on their phones. See, e.g., Kyllo, 533 U.S. at\n31 (home); New York v. Class, 475 U.S. 106, 115 (1986)\n(cars); Katz, 389 U.S. at 360–61 (Harlan, J., concurring)\n(enclosed telephone booths); Taketa, 923 F.2d at 673 (office);\nMcIntyre, 582 F.2d at 1223–24 (office). The Agent\nDefendants accept these well-established legal propositions.\nBut they maintain that the complaint’s allegations that the\nFBI planted electronic surveillance equipment in Fazaga’s\n\f FAZAGA V. WALLS 41\n\noffice and AbdelRahim’s house, car, and phone are too\nconclusory to satisfy Iqbal’s plausibility standard, and so do\nnot adequately allege on the merits a violation of Plaintiffs’\nrights under FISA. See al-Kidd, 563 U.S. at 735; Ashcroft v.\nIqbal, 556 U.S. 662, 678–79 (2009). We cannot agree.\n\n Plaintiffs offer sufficient well-pleaded facts to\nsubstantiate their allegation that some of the Agent\nDefendants—Allen and Armstrong—were responsible for\nplanting devices in AbdelRahim’s house. Specifically, the\ncomplaint details one occasion on which Allen and\nArmstrong asked Monteilh about something that had\nhappened in AbdelRahim’s house that Monteilh had not yet\ncommunicated to them, and explained that they knew about\nit because they had audio surveillance in the house.\n\n Plaintiffs also allege sufficient facts with regard to those\ntwo Agent Defendants in support of their allegation of\nelectronic surveillance of Fazaga’s office in the OCIF mosque\nin Mission Viejo: Allen and Armstrong told Monteilh that\nelectronic surveillance was “spread indiscriminately” across\n“at least eight area mosques including ICOI, and mosques in\nTustin, Mission Viejo, Culver City, Lomita, West Covina,\nand Upland,” and that “they could get in a lot of trouble if\npeople found out what surveillance they had in the mosques.”\nThey also instructed Monteilh to use a video camera hidden\nin a shirt button to record the interior of OCIF and “get a\nsense of the schematics of the place—entrances, exits, rooms,\nbathrooms, locked doors, storage rooms, as well as security\nmeasures and whether any security guards were\narmed.”Armstrong later told Monteilh that he and Allen used\nthe information he recorded to enter OCIF.\n\f42 FAZAGA V. WALLS\n\n As to Tidwell, Walls, and Rose, however, the complaint\ndoes not plausibly allege their personal involvement with\nrespect to the planted devices.20 The complaint details\nTidwell, Walls, and Rose’s oversight of Monteilh, including\nthat they read his daily notes and were apprised, through\nAllen and Armstrong, of the information he collected. But the\ncomplaint never alleges that Monteilh was involved in\nplanting devices in AbdelRahim’s house, car, or phone, or in\nFazaga’s office; those actions are attributed only to unnamed\nFBI agents.\n\n The complaint also offers general statements that Tidwell,\nWalls, and Rose supervised Allen and Armstrong.21 But\n“[g]overnment officials may not be held liable for the\nunconstitutional conduct of their subordinates under a theory\nof respondeat superior.” Iqbal, 556 U.S. at 676. Instead, “a\nplaintiff must plead that each Government-official defendant,\nthrough the official’s own individual actions, has violated the\nConstitution.” Id. Plaintiffs have not done so as to this\ncategory of surveillance with regard to Tidwell, Walls, and\nRose. The complaint does not allege that the supervisors\nknew of, much less ordered or arranged for, the planting of\n\n 20\n Because we concluded with respect to the first two categories of\nsurveillance either that Plaintiffs had no reasonable expectation of privacy\nor that the expectation was not clearly established in the case law at the\npertinent time, we reach the question whether Plaintiffs plausibly allege\nthe personal involvement of Tidwell, Wall, and Rose only with respect to\nthe third category of surveillance.\n 21\n The relevant allegations were only that Walls and Rose “actively\nmonitored, directed, and authorized the actions of Agents Allen and\nArmstrong and other agents at all times relevant in this action, for the\npurpose of surveilling Plaintiffs and other putative class members because\nthey were Muslim” and that Tidwell “authorized and actively directed the\nactions of Agents Armstrong, Allen, Rose, Walls, and other agents.”\n\f FAZAGA V. WALLS 43\n\nthe recording devices in AbdelRahim’s home or Fazaga’s\noffice, so the supervisors are entitled to qualified immunity as\nto that surveillance. See, e.g., Chavez v. United States,\n683 F.3d 1102, 1110 (9th Cir. 2012); Ortez v. Washington\nCounty, 88 F.3d 804, 809 (9th Cir. 1996).\n\n In sum, Plaintiffs allege a FISA claim against Allen and\nArmstrong for recordings made by devices planted by FBI\nagents in AbdelRahim’s house and Fazaga’s office. As to all\nother categories of surveillance, the Agent Defendants either\ndid not violate FISA; are entitled to qualified immunity on\nthe FISA claim because Plaintiffs’ reasonable expectation of\nprivacy was not clearly established; or were not plausibly\nalleged in the complaint to have committed any FISA\nviolation that may have occurred.\n\nII. The State Secrets Privilege and FISA Preemption\n\n Having addressed the only claim to survive Defendants’\nmotions to dismiss in the district court, we turn to the district\ncourt’s dismissal of the remaining claims pursuant to the state\nsecrets privilege.22 Plaintiffs argue that reversal is warranted\n“on either of two narrower grounds.” First, Plaintiffs argue\nthat, at this preliminary stage, the district court erred in\nconcluding that further litigation would require the disclosure\nof privileged information. Second, Plaintiffs maintain that the\ndistrict court should have relied on FISA’s alternative\nprocedures for handling sensitive national security\ninformation. Because we agree with Plaintiffs’ second\n\n\n 22\n Plaintiffs do not dispute at this juncture the district court’s\nconclusion that the information over which the Attorney General asserted\nthe state secrets privilege indeed comes within the privilege. We therefore\nassume as much for present purposes.\n\f44 FAZAGA V. WALLS\n\nargument, we do not decide the first. We therefore need not\nreview the Government’s state secrets claim to decide\nwhether the standard for dismissal at this juncture—whether\nthe district court properly “determine[d] with certainty . . .\nthat litigation must be limited or cut off in order to protect\nstate secrets, even before any discovery or evidentiary\nrequests have been made,” Mohamed v. Jeppesen Dataplan,\nInc., 614 F.3d 1070, 1081 (9th Cir. 2010) (en banc)—has\nbeen met.\n\n The initial question as to Plaintiffs’ second argument is\nwhether the procedures established under FISA for\nadjudicating the legality of challenged electronic surveillance\nreplace the common law state secrets privilege with respect\nto such surveillance to the extent that privilege allows the\ncategorical dismissal of causes of action. The question is a\nfairly novel one. We are the first federal court of appeals to\naddress it. Only two district courts, both in our circuit, have\nconsidered the issue. Those courts both held that FISA\n“displace[s] federal common law rules such as the state\nsecrets privilege with regard to matters within FISA’s\npurview.” Jewel v. NSA, 965 F. Supp. 2d 1090, 1105–06\n(N.D. Cal. 2013); accord In re NSA Telecomms. Records\nLitig. (In re NSA), 564 F. Supp. 2d 1109, 1117–24 (N.D. Cal.\n2008). We rely on similar reasoning to that in those district\ncourt decisions, but reach a narrower holding as to the scope\nof FISA preemption.\n\n Our analysis of this issue proceeds as follows. First, we\noffer a brief review of the state secrets privilege. Second, we\ndiscuss one reason why the district court should not have\ndismissed the search claims based on the privilege. Third, we\nexplain why FISA displaces the dismissal remedy of the\ncommon law state secrets privilege as applied to electronic\n\f FAZAGA V. WALLS 45\n\nsurveillance generally. Then we review the situations in\nwhich FISA’s procedures under § 1806(f) apply, including\naffirmative constitutional challenges to electronic\nsurveillance. Finally, we explain why the present case fits at\nleast one of the situations in which FISA’s procedures apply.\n\n Before we go on, we emphasize that although we hold\nthat Plaintiffs’ electronic surveillance claims are not subject\nto outright dismissal at the pleading stage because FISA\ndisplaces the state secrets privilege, the FISA procedure is,\nnot surprisingly, extremely protective of government secrecy.\nUnder that procedure, Plaintiffs’ religion claims will not go\nforward under the open and transparent processes to which\nlitigants are normally entitled. Instead, in the interest of\nprotecting national security, the stringent FISA procedures\nrequire severe curtailment of the usual protections afforded\nby the adversarial process and due process. See, e.g., Yamada\nv. Nobel Biocare Holding AG, 825 F.3d 536, 545 (9th Cir.\n2016) (holding that the district court’s use of ex parte, in\ncamera submissions to support its fee order violated\ndefendants’ due process rights); Intel Corp. v. Terabyte Int’l,\nInc., 6 F.3d 614, 623 (9th Cir. 1993) (same); MGIC Indem.\nCorp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (same).\nAs it is Plaintiffs who have invoked the FISA procedures, we\nproceed on the understanding that they are willing to accept\nthose restrictions to the degree they are applicable as an\nalternative to dismissal, and so may not later seek to contest\nthem.23\n\n\n\n\n 23\n We discuss how the district court is to apply the FISA procedures\nto Plaintiffs’ surviving claims on remand in infra Part V.\n\f46 FAZAGA V. WALLS\n\n A. The State Secrets Privilege\n\n “The Supreme Court has long recognized that in\nexceptional circumstances courts must act in the interest of\nthe country’s national security to prevent disclosure of state\nsecrets, even to the point of dismissing a case entirely.”\nJeppesen, 614 F.3d at 1077 (citing Totten v. United States,\n92 U.S. 105, 107 (1876)). Neither the Supreme Court nor this\ncourt has precisely delineated what constitutes a state secret.\nReynolds referred to “military matters which, in the interest\nof national security, should not be divulged.” 345 U.S. at 10.\nJeppesen added that not all classified information is\nnecessarily privileged under Reynolds. 614 F.3d at 1082. The\nstate secrets privilege has been held to apply to information\nthat would result in “impairment of the nation’s defense\ncapabilities, disclosure of intelligence-gathering methods or\ncapabilities, and disruption of diplomatic relations with\nforeign governments, or where disclosure would be inimical\nto national security.” Black v. United States, 62 F.3d 1115,\n1118 (8th Cir. 1995) (citations and internal quotation marks\nomitted). But courts have acknowledged that terms like\n“military or state secrets” are “amorphous in nature,” id.\n(citation omitted); the phrase “inimical to national security”\ncertainly is. And although purely domestic investigations with\nno international connection do not involve state secrets, we\nrecognize that the contours of the privilege are perhaps even\nmore difficult to draw in a highly globalized, post-9/11\nenvironment, where the lines between foreign and domestic\nsecurity interests may be blurred.\n\n We do not attempt to resolve the ambiguity or to explain\ndefinitively what constitutes a “state secret.” But we note the\nambiguity nonetheless at the outset, largely as a reminder\nthat, as our court has previously noted, “[s]imply saying\n\f FAZAGA V. WALLS 47\n\n‘military secret,’ ‘national security’ or ‘terrorist threat’ or\ninvoking an ethereal fear that disclosure will threaten our\nnation is insufficient to support the privilege.” Al-Haramain\nIslamic Found., Inc. v. Bush (Al-Haramain I), 507 F.3d 1190,\n1203 (9th Cir. 2007).\n\n Created by federal common law, the modern state secrets\ndoctrine has two applications: the Totten bar and the Reynolds\nprivilege. The Totten bar is invoked “‘where the very subject\nmatter of the action’ is ‘a matter of state secret.’” Id. at 1077\n(quoting Reynolds, 345 U.S. at 11 n.26). It “completely bars\nadjudication of claims premised on state secrets.” Id.; see also\nTotten, 95 U.S. at 106–07. The Reynolds privilege, by\ncontrast, “is an evidentiary privilege rooted in federal\ncommon law.” Kasza v. Browner, 133 F.3d 1159, 1167 (9th\nCir. 1998); see also Gen. Dynamics Corp. v. United States,\n563 U.S. 478, 485 (2011). It “may be asserted at any time,”\nand successful assertion “will remove the privileged evidence\nfrom the litigation.” Jeppesen, 614 F.3d at 1079–80.\n\n Here, after the Attorney General asserted the Reynolds\nprivilege and the Government submitted both public and\nclassified declarations setting out the parameters of its state\nsecrets contention, the Government Defendants requested\ndismissal of Plaintiffs’ religion claims in toto—but not the\nFourth Amendment and FISA claims—at the pleading stage.\n“Dismissal at the pleading stage under Reynolds is a drastic\nresult and should not be readily granted.” Jeppesen, 614 F.3d\nat 1089. Only “if state secrets are so central to a proceeding\nthat it cannot be litigated without threatening their disclosure”\nis dismissal the proper course. Id. at 1081 (quoting El-Masri\nv. United States, 479 F.3d 296, 308 (4th Cir. 2007)). Because\nthere is a strong interest in allowing otherwise meritorious\nlitigation to go forward, the court’s inquiry into the need for\n\f48 FAZAGA V. WALLS\n\nthe secret information should be specific and tailored, not\nvague and general. See id. at 1081–82; In re Sealed Case,\n494 F.3d 139, 144–54 (D.C. Cir. 2007).\n\n Specifically, the Reynolds privilege will justify dismissal\nof the action in three circumstances: (1) if “the plaintiff\ncannot prove the prima facie elements of her claim with\nnonprivileged evidence”; (2) if “the privilege deprives the\ndefendant of information that would otherwise give the\ndefendant a valid defense to the claim”; and (3) if “privileged\nevidence” is “inseparable from nonprivileged information\nthat will be necessary to the claims or defenses” such that\n“litigating the case to a judgment on the merits would present\nan unacceptable risk of disclosing state secrets.” Jeppesen,\n614 F.3d at 1083 (citations omitted). The district court\nassumed that Plaintiffs could make a prima facie case without\nresorting to state secrets evidence, but determined that the\nsecond and third circumstances exist in this case and require\ndismissal.\n\n B. The District Court’s Dismissal of the Search\n Claims Based on the State Secrets Privilege\n\n As a threshold matter, before determining whether FISA\ndisplaces the state secrets privilege with regard to electronic\nsurveillance, we first consider which of Plaintiffs’ claims\nmight otherwise be subject to dismissal under the state secrets\nprivilege. Although the Government expressly did not request\ndismissal of the Fourth Amendment and FISA claims based\non the privilege, the district court nonetheless dismissed the\nFourth Amendment claim on that basis. That was error.\n\n The Government must formally claim the Reynolds\nprivilege. Reynolds, 345 U.S. at 7–8. The privilege is “not\n\f FAZAGA V. WALLS 49\n\nsimply an administrative formality” that may be asserted by\nany official. Jeppesen, 614 F.3d at 1080 (quoting United\nStates v. W.R. Grace, 526 F.3d 499, 507–08 (9th Cir. 2008)\n(en banc)). Rather, the formal claim must be “lodged by the\nhead of the department which has control over the matter.”\nReynolds, 345 U.S. at 8. The claim must “reflect the\ncertifying official’s personal judgment; responsibility for\n[asserting the privilege] may not be delegated to lesser-\nranked officials.” Jeppesen, 614 F.3d at 1080. And the claim\n“must be presented in sufficient detail for the court to make\nan independent determination of the validity of the claim of\nprivilege and the scope of the evidence subject to the\nprivilege.” Id. Such unusually strict procedural requirements\nexist because “[t]he privilege ‘is not to be lightly invoked,’”\nespecially when dismissal of the entire action is sought. Id.\n(quoting Reynolds, 345 U.S. at 7).\n\n Here, although the Government has claimed the Reynolds\nprivilege over certain state secrets, it has not sought dismissal\nof the Fourth Amendment and FISA claims based on its\ninvocation of the privilege. In light of that position, the\ndistrict court should not have dismissed those claims. In\ndoing so, its decision was inconsistent with Jeppesen’s\nobservation that, “[i]n evaluating the need for secrecy, ‘we\nacknowledge the need to defer to the Executive on matters of\nforeign policy and national security and surely cannot\nlegitimately find ourselves second guessing the Executive in\nthis arena.’” 614 F.3d at 1081–82 (quoting Al-Haramain I,\n507 F.3d at 1203). Just as the Executive is owed deference\nwhen it asserts that exclusion of the evidence or dismissal of\nthe case is necessary to protect national security, so the\nExecutive is necessarily also owed deference when it asserts\nthat national security is not threatened by litigation.\n\f50 FAZAGA V. WALLS\n\n Indeed, Jeppesen cautioned that courts should work “to\nensure that the state secrets privilege is asserted no more\nfrequently and sweepingly than necessary.” Id. at 1082\n(quoting Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir.\n1983)). Dismissing claims based on the privilege where the\nGovernment has expressly told the court it is not necessary to\ndo so—and, in particular, invoking the privilege to dismiss,\nat the pleading stage, claims the Government has expressly\ntold the court it need not dismiss on grounds of\nprivilege—cuts directly against Jeppesen’s call for careful,\nlimited application of the privilege.\n\n Although the Government Defendants expressly did not\nrequest dismissal of the search claims under the state secrets\nprivilege, the Agent Defendants did so request. In declining\nto seek dismissal of the search claims based on the state\nsecrets privilege, the Government explained:\n\n At least at this stage of the proceedings,\n sufficient non-privileged evidence may be\n available to litigate these claims should they\n otherwise survive motions to dismiss on non-\n privilege grounds. The FBI has previously\n disclosed in a separate criminal proceeding\n that Monteilh collected audio and video\n information for the FBI, and some of that\n audio and video information was produced in\n that prior case. The FBI has been reviewing\n additional audio and video collected by\n Monteilh for possible disclosure in connection\n with further proceedings on the issue of\n whether the FBI instructed or permitted\n Monteilh to leave recording devices\n unattended in order to collect non-consenting\n\f FAZAGA V. WALLS 51\n\n communications. The FBI expects that the\n majority of the audio and video will be\n available in connection with further\n proceedings. Thus, while it remains possible\n that the need to protect properly privileged\n national security information might still\n foreclose litigation of these claims, at present\n the FBI and official capacity defendants do\n not seek to dismiss these claims based on the\n privilege assertion.\n\nThe Agent Defendants note that the Government focuses on\nthe public disclosure of recordings collected by Monteilh, and\npoint out that Plaintiffs also challenge surveillance conducted\nwithout Monteilh’s involvement—namely, the planting of\nrecording devices by FBI agents in Fazaga’s office and\nAbdelRahim’s home, car, and phone. Allegations concerning\nthe planting of recording devices by FBI agents other than\nMonteilh, the Agent Defendants argue, are the “sources and\nmethods” discussed in the Attorney General’s invocation of\nthe privilege. The Agent Defendants thus maintain that\nbecause the Government’s reasons for not asserting the\nprivilege over the search claims do not apply to all of the\nsurveillance encompassed by the search claims, dismissal as\nto the search claims is in fact necessary.\n\n The Agent Defendants, however, are not uniquely subject\nto liability for the planted devices. The Fourth Amendment\nclaim against the Government Defendants likewise applies to\nthat category of surveillance. See infra Part III.A. The Agent\nDefendants—officials sued in their individual capacities—are\nnot the protectors of the state secrets evidence; the\nGovernment is. Accordingly, and because the Agent\nDefendants have not identified a reason they specifically\n\f52 FAZAGA V. WALLS\n\nrequire dismissal to protect against the harmful disclosure of\nstate secrets where the Government does not, we decline to\naccept their argument that the Government’s dismissal\ndefense must be expanded beyond the religion claims.24\n\n In short, in determining sua sponte that particular claims\nwarrant dismissal under the state secrets privilege, the district\ncourt erred. For these reasons, we will not extend FISA’s\nprocedures to challenges to the lawfulness of electronic\nsurveillance to the degree the Government agrees that such\nchallenges may be litigated in accordance with ordinary\nadversarial procedures without compromising national\nsecurity.\n\n C. FISA Displacement of the State Secrets Privilege\n\n Before the enactment of FISA in 1978, foreign\nintelligence surveillance and the treatment of evidence\nimplicating state secrets were governed purely by federal\ncommon law. Federal courts develop common law “in the\nabsence of an applicable Act of Congress.” City of Milwaukee\nv. Illinois, 451 U.S. 304, 313 (1981). “Federal common law\nis,” however, “a ‘necessary expedient’ and when Congress\naddresses a question previously governed by a decision rested\non federal common law the need for such an unusual exercise\nof lawmaking by federal courts disappears.” Id. (citation\nomitted). Once “the field has been made the subject of\n\n 24\n Although the Government may assert the state secrets privilege\neven when it is not a party to the case, see Jeppesen, 614 F.3d at 1080, we\nhave not found—and the Agent Defendants have not cited—any case\nother than the one at hand in which a court granted dismissal under the\nprivilege as to non-Government defendants, notwithstanding the\nGovernment’s assertion that the claims at issue may be litigated with\nnonprivileged information.\n\f FAZAGA V. WALLS 53\n\ncomprehensive legislation or authorized administrative\nstandards,” federal common law no longer applies. Id.\n(quoting Texas v. Pankey, 441 F.2d 236, 241 (10th Cir.\n1971)).\n\n To displace federal common law, Congress need not\n“affirmatively proscribe[] the use of federal common law.”\nId. at 315. Rather, “to abrogate a common-law principle, the\nstatute must ‘speak directly’ to the question addressed by the\ncommon law.” United States v. Texas, 507 U.S. 529, 534\n(1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S.\n618, 625 (1978)). As we now explain, in enacting FISA,\nCongress displaced the common law dismissal remedy\ncreated by the Reynolds state secrets privilege as applied to\nelectronic surveillance within FISA’s purview.25\n\n We have specifically held that because “the state secrets\nprivilege is an evidentiary privilege rooted in federal common\nlaw . . . the relevant inquiry in deciding if [a statute] preempts\nthe state secrets privilege is whether the statute ‘[speaks]\ndirectly to [the] question otherwise answered by federal\ncommon law.’” Kasza, 133 F.3d at 1167 (second and third\nalterations in original) (quoting County of Oneida v. Oneida\nIndian Nation, 470 U.S. 226, 236–37 (1985)).26 Nonetheless,\nthe Government maintains, in a vague and short paragraph in\nits brief, that Congress cannot displace the state secrets\n\n 25\n Our holding concerns only the Reynolds privilege, not the Totten\njusticiability bar.\n 26\n Applying this principle, Kasza concluded that section 6001 of the\nResource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6961,\ndid not preempt the state secrets privilege as to RCRA regulatory material,\nas “the state secrets privilege and § 6001 have different purposes.”\n133 F.3d at 1168.\n\f54 FAZAGA V. WALLS\n\nevidentiary privilege absent a clear statement, and that,\nbecause Plaintiffs cannot point to a clear statement,\n“principles of constitutional avoidance” require rejecting the\nconclusion that FISA’s procedures displace the dismissal\nremedy of the state secrets privilege with regard to electronic\nsurveillance.\n\n In support of this proposition, the Government cites two\nout-of-circuit cases, El-Masri v. United States, 479 F.3d 296,\nand Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991). El-\nMasri does not specify a clear statement rule; it speaks\ngenerally about the constitutional significance of the state\nsecrets privilege, while recognizing its common law roots.\n479 F.3d at 303–04. Armstrong holds generally that the clear\nstatement rule must be applied “to statutes that significantly\nalter the balance between Congress and the President,” but\ndoes not apply that principle to the state secrets privilege.\n924 F.2d at 289. So neither case is directly on point.\n\n Under our circuit’s case law, a clear statement in the\nsense of an explicit abrogation of the common law state\nsecrets privilege is not required to decide that a statute\ndisplaces the privilege. Rather, if “the statute ‘[speaks]\ndirectly to [the] question otherwise answered by federal\ncommon law,’” that is sufficient. Kasza, 133 F.3d at 1167\n(second and third alterations in original) (quoting Oneida,\n470 U.S. at 236–37); see also Texas, 507 U.S. at 534.\nAlthough we, as a three-judge panel, could not hold\notherwise, we would be inclined in any event to reject any\nclear statement rule more stringent than Kasza’s “speak\ndirectly to the question” requirement in this context.\n\n The state secrets privilege may have “a constitutional\n‘core’ or constitutional ‘overtones,’” In re NSA, 564 F. Supp.\n\f FAZAGA V. WALLS 55\n\n2d at 1124, but, at bottom, it is an evidentiary rule rooted in\ncommon law, not constitutional law. The Supreme Court has\nso emphasized, explaining that Reynolds “decided a purely\nevidentiary dispute by applying evidentiary rules.” Gen.\nDynamics, 563 U.S. at 485. To require express abrogation, by\nname, of the state secrets privilege would be inconsistent with\nthe evidentiary roots of the privilege.\n\n In any event, the text of FISA does speak quite directly to\nthe question otherwise answered by the dismissal remedy\nsometimes required by the common law state secrets\nprivilege. Titled “In camera and ex parte review by district\ncourt,” § 1806(f) provides:\n\n Whenever a court or other authority is notified\n pursuant to subsection (c) or (d) of this\n section, or whenever a motion is made\n pursuant to subsection (e) of this section, or\n whenever any motion or request is made by an\n aggrieved person pursuant to any other statute\n or rule of the United States or any State before\n any court or other authority of the United\n States or any State to discover or obtain\n applications or orders or other materials\n relating to electronic surveillance or to\n discover, obtain, or suppress evidence or\n information obtained or derived from\n electronic surveillance under this chapter, the\n United States district court or, where the\n motion is made before another authority, the\n United States district court in the same\n d i s trict as the authority, shall,\n notwithstanding any other law, if the Attorney\n General files an affidavit under oath that\n\f56 FAZAGA V. WALLS\n\n disclosure or an adversary hearing would\n harm the national security of the United\n States, review in camera and ex parte the\n application, order, and such other materials\n relating to the surveillance as may be\n necessary to determine whether the\n surveillance of the aggrieved person was\n lawfully authorized and conducted. In making\n this determination, the court may disclose to\n the aggrieved person, under appropriate\n security procedures and protective orders,\n portions of the application, order, or other\n materials relating to the surveillance only\n where such disclosure is necessary to make an\n accurate determination of the legality of the\n surveillance.\n\n50 U.S.C. § 1806(f) (emphasis added).\n\n The phrase “notwithstanding any other law,” the several\nuses of the word “whenever,” and the command that courts\n“shall” use the § 1806(f) procedures to decide the lawfulness\nof the surveillance if the Attorney General asserts that\nnational security is at risk, confirm Congress’s intent to make\nthe in camera and ex parte procedure the exclusive procedure\nfor evaluating evidence that threatens national security in the\ncontext of electronic surveillance-related determinations. Id.\n(emphasis added). That mandatory procedure necessarily\noverrides, on the one hand, the usual procedural rules\nprecluding such severe compromises of the adversary process\nand, on the other, the state secrets evidentiary dismissal\noption. See H.R. Rep. No. 95-1283, pt. 1, at 91 (1978) (“It is\nto be emphasized that, although a number of different\nprocedures might be used to attack the legality of the\n\f FAZAGA V. WALLS 57\n\nsurveillance, it is the procedures set out in subsections (f) and\n(g) ‘notwithstanding any other law’ that must be used to\nresolve the question.”).27\n\n The procedures set out in § 1806(f) are animated by the\nsame concerns—threats to national security—that underlie\nthe state secrets privilege. See Jeppesen, 614 F.3d at 1077,\n1080. And they are triggered by a process—the filing of an\naffidavit under oath by the Attorney General—nearly\nidentical to the process that triggers application of the state\nsecrets privilege, a formal assertion by the head of the\nrelevant department. See id. at 1080. In this sense, § 1806(f)\n“is, in effect, a ‘codification of the state secrets privilege for\npurposes of relevant cases under FISA, as modified to reflect\nCongress’s precise directive to the federal courts for the\nhandling of [electronic surveillance] materials and\ninformation with purported national security implications.’”\nJewel, 965 F. Supp. 2d at 1106 (quoting In re NSA, 564 F.\nSupp. 2d at 1119); see also In re NSA, 564 F. Supp. 2d at\n1119 (holding that “the Reynolds protocol has no role where\nsection 1806(f) applies”). That § 1806(f) requires in camera\nand ex parte review in the exact circumstance that could\notherwise trigger dismissal of the case demonstrates that\n§ 1806(f) supplies an alternative mechanism for the\nconsideration of electronic state secrets evidence. Section\n1806(f) therefore eliminates the need to dismiss the case\nentirely because of the absence of any legally sanctioned\n\n 27\n Whether “notwithstanding” language in a given statute should be\nunderstood to supersede all otherwise applicable laws or read more\nnarrowly to override only previously existing laws depends on the overall\ncontext of the statute. See United States v. Novak, 476 F.3d 1041, 1046–47\n(9th Cir. 2007) (en banc). Here, the distinction does not matter, as the\nReynolds common law state secrets evidentiary privilege preceded the\nenactment of FISA.\n\f58 FAZAGA V. WALLS\n\nmechanism for a major modification of ordinary judicial\nprocedures—in camera, ex parte decisionmaking.\n\n This conclusion is consistent with the overall structure of\nFISA. FISA does not concern Congress and the President\nalone. Instead, the statute creates “a comprehensive, detailed\nprogram to regulate foreign intelligence surveillance in the\ndomestic context.” In re NSA, 564 F. Supp. 2d at 1118. FISA\n“set[s] out in detail roles for all three branches of\ngovernment, providing judicial and congressional oversight\nof the covert surveillance activities by the executive branch\ncombined with measures to safeguard secrecy necessary to\nprotect national security.” Id. at 1115. And it provides rules\nfor the executive branch to follow in “undertak[ing]\nelectronic surveillance and physical searches for foreign\nintelligence purposes in the domestic sphere.” Id.\n\n Moreover, FISA establishes a special court to hear\napplications for and grant orders approving electronic\nsurveillance under certain circumstances. See 50 U.S.C.\n§ 1803. FISA also includes a private civil enforcement\nmechanism, see id. § 1810, and sets out a procedure by which\ncourts should consider evidence that could harm the country’s\nnational security, see id. § 1806(f). The statute thus broadly\ninvolves the courts in the regulation of electronic surveillance\nrelating to national security, while devising extraordinary,\npartially secret judicial procedures for carrying out that\ninvolvement. And Congress expressly declared that FISA,\nalong with the domestic law enforcement electronic\nsurveillance provisions of the Wiretap Act and the Stored\nCommunications Act, are “the exclusive means by which\nelectronic surveillance . . . may be conducted.” 18 U.S.C.\n§ 2511(2)(f).\n\f FAZAGA V. WALLS 59\n\n The legislative history of FISA confirms Congress’s\nintent to displace the remedy of dismissal for the common\nlaw state secrets privilege. FISA was enacted in response to\n“revelations that warrantless electronic surveillance in the\nname of national security ha[d] been seriously abused.” S.\nRep. No. 95-604, pt. 1, at 7 (1978), reprinted in 1978\nU.S.C.C.A.N. 3904, 3908. The Senate Select Committee to\nStudy Governmental Operations with Respect to Intelligence\nActivities, a congressional task force formed in 1975 and\nknown as the Church Committee, exposed the unlawful\nsurveillance in a series of investigative reports. The Church\nCommittee documented “a massive record of intelligence\nabuses over the years,” in which “the Government ha[d]\ncollected, and then used improperly, huge amounts of\ninformation about the private lives, political beliefs and\nassociations of numerous Americans.” S. Select Comm. to\nStudy Governmental Operations with Respect to Intelligence\nActivities, Book II: Intelligence Activities and the Rights of\nAmericans, S. Rep. No. 94-755, at 290 (1976). The\nCommittee concluded that these abuses had “undermined the\nconstitutional rights of citizens . . . primarily because checks\nand balances designed by the framers of the Constitution to\nassure accountability [were not] applied.” Id. at 289.\n\n Urging “fundamental reform,” id. at 289, the Committee\nrecommended legislation to “make clear to the Executive\nbranch that it will not condone, and does not accept, any\ntheory of inherent or implied authority to violate the\nConstitution,” id. at 297. Observing that the Executive would\nhave “no such authority after Congress has . . . covered the\nfield by enactment of a comprehensive legislative charter”\nthat would “provide the exclusive legal authority for domestic\nsecurity activities,” id. at 297, the Committee recommended\nthat Congress create civil remedies for unlawful surveillance,\n\f60 FAZAGA V. WALLS\n\nboth to “afford effective redress to people who are injured by\nimproper federal intelligence activity” and to “deter improper\nintelligence activity.” Id. at 336. Further, in recognition of the\npotential interplay between promoting accountability and\nensuring security, the Committee noted its “belie[f] that the\ncourts will be able to fashion discovery procedures, including\ninspection of material in chambers, and to issue orders as the\ninterests of justice require, to allow plaintiffs with substantial\nclaims to uncover enough factual material to argue their case,\nwhile protecting the secrecy of governmental information in\nwhich there is a legitimate security interest.” Id. at 337.\n\n FISA implemented many of the Church Committee’s\nrecommendations. In striking a careful balance between\nassuring the national security and protecting against\nelectronic surveillance abuse, Congress carefully considered\nthe role previously played by courts, and concluded that the\njudiciary had been unable effectively to achieve an\nappropriate balance through federal common law:\n\n [T]he development of the law regulating\n electronic surveillance for national security\n purposes has been uneven and inconclusive.\n This is to be expected where the development\n is left to the judicial branch in an area where\n cases do not regularly come before it.\n Moreover, the development of standards and\n restrictions by the judiciary with respect to\n electronic surveillance for foreign intelligence\n purposes accomplished through case law\n threatens both civil liberties and the national\n security because that development occurs\n generally in ignorance of the facts,\n circumstances, and techniques of foreign\n\f FAZAGA V. WALLS 61\n\n intelligence electronic surveillance not present\n in the particular case before the court. . . .\n [T]he tiny window to this area which a\n particular case affords provides inadequate\n light by which judges may be relied upon to\n develop case law which adequately balances\n the rights of privacy and national security.\n\nH. Rep. No. 95-1283, pt. 1, at 21. FISA thus represents an\neffort to “provide effective, reasonable safeguards to ensure\naccountability and prevent improper surveillance,” and to\n“strik[e] a fair and just balance between protection of national\nsecurity and protection of personal liberties.” S. Rep. No. 95-\n604, pt. 1, at 7.\n\n In short, the procedures outlined in § 1806(f) “provide[]\na detailed regime to determine whether surveillance ‘was\nlawfully authorized and conducted,’” Al-Haramain I,\n507 F.3d at 1205 (citing 50 U.S.C. § 1806(f)), and constitute\n“Congress’s specific and detailed description for how courts\nshould handle claims by the government that the disclosure\nof material relating to or derived from electronic surveillance\nwould harm national security,” Jewel, 965 F. Supp. 2d at\n1106 (quoting In re NSA, 564 F. Supp. 2d at 1119). Critically,\nthe FISA approach does not publicly expose the state secrets.\nIt does severely compromise plaintiffs’ procedural rights, but\nnot to the degree of entirely extinguishing potentially\nmeritorious substantive rights.\n\f62 FAZAGA V. WALLS\n\n D. Applicability of FISA’s § 1806(f) Procedures to\n Affirmative Legal Challenges to Electronic\n Surveillance\n\n Having determined that, where they apply, § 1806(f)’s\nprocedures displace a dismissal remedy for the Reynolds state\nsecrets privilege, we now consider whether § 1806(f)’s\nprocedures apply to the circumstances of this case.\n\n By the statute’s terms, the procedures set forth in\n§ 1806(f) are to be used—where the Attorney General files\nthe requisite affidavit—in the following circumstances:\n\n [w]henever a court or other authority is\n notified pursuant to subsection (c) or (d) of\n this section, or whenever a motion is made\n pursuant to subsection (e) of this section, or\n whenever any motion or request is made by an\n aggrieved person pursuant to any other statute\n or rule of the United States or any State before\n any court or other authority of the United\n States or any State to discover or obtain\n applications or orders or other materials\n relating to electronic surveillance or to\n discover, obtain, or suppress evidence or\n information obtained or derived from\n electronic surveillance under this chapter.\n\n50 U.S.C. § 1806(f). From this text and the cross-referenced\nsubsections, we derive three circumstances in which the in\ncamera and ex parte procedures are to be used: when (1) a\ngovernmental body gives notice of its intent “to enter into\nevidence or otherwise use or disclose in any trial, hearing, or\nother proceeding in or before any court, department, officer,\n\f FAZAGA V. WALLS 63\n\nagency, regulatory body, or other authority of the United\nStates, against an aggrieved person, any information obtained\nor derived from an electronic surveillance,” id. § 1806(c)\n(emphases added);28 (2) an aggrieved person moves to\nsuppress the evidence, id. § 1806(e); or (3) an aggrieved\nperson makes “any motion or request . . . pursuant to any\nother statute or rule . . . to discover or obtain applications or\norders or other materials relating to electronic surveillance or\nto discover, obtain, or suppress evidence or information\nobtained or derived from electronic surveillance under this\nchapter,” id. § 1806(f) (emphasis added).\n\n The case at hand fits within the contemplated\ncircumstances in two respects. First, the Government, in its\nassertion of the state secrets privilege, has notified the court\nthat it intends to use information obtained or derived from its\nelectronic surveillance of Plaintiffs as part of its defense\nagainst Plaintiffs’ allegations. See id. § 1806(c). Specifically,\nthe Attorney General’s privilege assertion encompassed,\namong other things, “any information obtained during the\ncourse of” Operation Flex, the “results of the investigation,”\nand “any results derived from” the “sources and methods”\nused in Operation Flex. It is precisely because the\nGovernment would like to use this information to defend\nitself that it has asserted the state secrets privilege. And the\ndistrict court’s dismissal ruling was premised in part on the\npotential use of state secrets material to defend the case.\n\n\n 28\n The text of § 1806(f) refers to notice “pursuant to subsection (c) or\n(d) of this section.” 50 U.S.C. § 1806(f) (emphasis added). Section\n1806(d) describes verbatim the same procedures as contained in § 1806(c),\nexcept as applied to States and political subdivisions rather than to the\nUnited States. Id. § 1806(d). For convenience, we refer only to § 1806(c)\nin this opinion, but our analysis applies to § 1806(d) with equal force.\n\f64 FAZAGA V. WALLS\n\n Second, in their prayer for relief, Plaintiffs have requested\ninjunctive relief “ordering Defendants to destroy or return any\ninformation gathered through the unlawful surveillance\nprogram by Monteilh and/or Operation Flex described above,\nand any information derived from that unlawfully obtained\ninformation.” Plaintiffs thus have requested, in the\nalternative, to “obtain” information gathered during or\nderived from electronic surveillance. See id. § 1806(f).\n\n The Government disputes that FISA applies to this case.\nIts broader contention is that § 1806(f)’s procedures do not\napply to any affirmative claims challenging the legality of\nelectronic surveillance or the use of information derived from\nelectronic surveillance, whether brought under FISA’s private\nright of action or any other constitutional provision, statute,\nor rule. Instead, the Government maintains, FISA’s\nprocedures apply only when the government initiates the legal\naction, while the state secrets privilege applies when the\ngovernment defends affirmative litigation brought by private\nparties.\n\n The plain text and statutory structure of FISA provide\notherwise. To begin, the language of the statute simply does\nnot contain the limitations the Government suggests. As\ndiscussed above, § 1806(f)’s procedures are to be used in any\none of three situations, each of which is separated in the\nstatute by an “or.” See id. The first situation—when “the\nGovernment intends to enter into evidence or otherwise use\nor disclose information obtained or derived from an\nelectronic surveillance . . . against an aggrieved person” in\n“any trial, hearing, or other proceeding,” id. § 1806(c)\n(emphasis added)—unambiguously encompasses affirmative\nas well as defensive challenges to the lawfulness of\n\f FAZAGA V. WALLS 65\n\nsurveillance.29 The conduct governed by the statutory\nprovision is the Government’s intended entry into evidence\nor other use or disclosure of information obtained or derived\nfrom electronic surveillance. “[A]gainst an aggrieved person”\nrefers to and modifies the phrase “any information obtained\nor derived.” Id. As a matter of ordinary usage, the phrase\n“against an aggrieved person” cannot modify “any trial,\nhearing, or other proceeding in or before any court,\ndepartment, officer, agency, regulatory body, or other\nauthority of the United States.” Id. Evidence—such as “any\ninformation obtained or derived from an electronic\nsurveillance”—can properly be said to be “against” a party.\nSee, e.g., U.S. Const. amend. V (“No person . . . shall be\ncompelled in any criminal case to be a witness against\nhimself . . . .”); Miranda v. Arizona, 384 U.S. 436, 460 (1966)\n\n\n 29\n In full, § 1806(c) reads:\n\n Whenever the Government intends to enter into\n evidence or otherwise use or disclose in any trial,\n hearing, or other proceeding in or before any court,\n department, officer, agency, regulatory body, or other\n authority of the United States, against an aggrieved\n person, any information obtained or derived from an\n electronic surveillance of that aggrieved person\n pursuant to the authority of this subchapter, the\n Government shall, prior to the trial, hearing, or other\n proceeding or at a reasonable time prior to an effort to\n so disclose or so use that information or submit it in\n evidence, notify the aggrieved person and the court or\n other authority in which the information is to be\n disclosed or used that the Government intends to so\n disclose or so use such information.\n\n50 U.S.C. § 1806(c). Again, we refer to the text of § 1806(c) because\n§ 1806(f)’s procedures apply “[w]henever a court or other authority is\nnotified pursuant to subsection (c) or (d) of this section.” Id. § 1806(f).\n\f66 FAZAGA V. WALLS\n\n(“[O]ur accusatory system of criminal justice demands that\nthe government seeking to punish an individual produce the\nevidence against him by its own independent labors, rather\nthan by the cruel, simple expedient of compelling it from his\nown mouth.” (emphasis added)). But a “trial, hearing, or\nother proceeding” is not for or against either party; such a\nproceeding is just an opportunity to introduce evidence. Also,\nas the phrase is set off by commas, “against an aggrieved\nperson” is grammatically a separate modifier from the list of\nproceedings contained in § 1806(f). Were the phrase meant to\nmodify the various proceedings, there would be no\nintervening comma setting it apart.\n\n The third situation—when a “motion or request is made\nby an aggrieved person pursuant to any other statute or rule\n. . . before any court . . . to discover or obtain applications or\norders or other materials relating to electronic surveillance or\nto discover, obtain, or suppress evidence or information\nobtained or derived from electronic surveillance under this\nchapter,” id. § 1806(f)—also by its plain text encompasses\naffirmative challenges to the legality of electronic\nsurveillance. When an aggrieved person makes such a motion\nor request, or the government notifies the aggrieved person\nand the court that it intends to use or disclose information\nobtained or derived from electronic surveillance, the statute\nrequires a court to use § 1806(f)’s procedures “to determine\nwhether the surveillance . . . was lawfully authorized and\nconducted.” Id. In other words, a court must “determine\nwhether the surveillance was authorized and conducted in a\nmanner which did not violate any constitutional or statutory\nright.” S. Rep. No. 95-604, pt. 1, at 57; accord S. Rep. No.\n95-701, at 63.\n\f FAZAGA V. WALLS 67\n\n The inference drawn from the text of § 1806 is bolstered\nby § 1810, which specifically creates a private right of action\nfor an individual subjected to electronic surveillance in\nviolation of FISA. FISA prohibits, for example, electronic\nsurveillance of a U.S. person “solely upon the basis of\nactivities protected by the first amendment to the Constitution\nof the United States.” 50 U.S.C. § 1805(a)(2)(A). Here,\nPlaintiffs allege they were surveilled solely on account of\ntheir religion. If true, such surveillance was necessarily\nunauthorized by FISA, and § 1810 subjects any persons who\nintentionally engaged in such surveillance to civil liability. It\nwould make no sense for Congress to pass a comprehensive\nlaw concerning foreign intelligence surveillance, expressly\nenable aggrieved persons to sue for damages when that\nsurveillance is unauthorized, see id. § 1810, and provide\nprocedures deemed adequate for the review of national\nsecurity-related evidence, see id. § 1806(f), but not intend for\nthose very procedures to be used when an aggrieved person\nsues for damages under FISA’s civil enforcement mechanism.\nPermitting a § 1810 claim to be dismissed on the basis of the\nstate secrets privilege because the § 1806(f) procedures are\nunavailable would dramatically undercut the utility of § 1810\nin deterring FISA violations. Such a dismissal also would\nundermine the overarching goal of FISA more\nbroadly—“curb[ing] the practice by which the Executive\nBranch may conduct warrantless electronic surveillance on its\nown unilateral determination that national security justifies\nit.” S. Rep. No. 95-604, pt. 1, at 8.\n\n FISA’s legislative history confirms that § 1806(f)’s\nprocedures were designed to apply in both civil and criminal\ncases, and to both affirmative and defensive use of electronic\nsurveillance evidence. The Senate bill initially provided a\nsingle procedure for criminal and civil cases, while the House\n\f68 FAZAGA V. WALLS\n\nbill at the outset specified two separate procedures for\ndetermining the legality of electronic surveillance.30 In the\nend, the conference committee adopted a slightly modified\nversion of the Senate bill, agreeing “that an in camera and ex\nparte proceeding is appropriate for determining the\nlawfulness of electronic surveillance in both criminal and\ncivil cases.” H.R. Rep. No. 95-1720, at 32.\n\n In the alternative, the Government suggests that\n§ 1806(f)’s procedures for the use of electronic surveillance\nin litigation are limited to affirmative actions brought directly\nunder § 1810. We disagree. The § 1806(f) procedures are\nexpressly available, as well as mandatory, for affirmative\nclaims brought “by an aggrieved person pursuant to any . . .\nstatute or rule of the United States . . . before any court . . . of\nthe United States.” 50 U.S.C. § 1806(f) (emphasis added).\nThis provision was meant “to make very clear that these\nprocedures apply whatever the underlying rule or statute” at\nissue, so as “to prevent these carefully drawn procedures from\nbeing bypassed by the inventive litigant using a new statute,\nrule or judicial construction.” H.R. Rep. No. 95-1283, pt. 1,\nat 91 (emphasis added).\n\n\n\n 30\n Under the House bill, in criminal cases there would be an in camera\nproceeding, and the court could, but need not, disclose the materials\nrelating to the surveillance to the aggrieved person “if there were a\nreasonable question as to the legality of the suveillance [sic] and if\ndisclosure would likely promote a more accurate determination of such\nlegality, or if disclosure would not harm the national security.” H.R. Rep.\nNo. 95-1720, at 31 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N.\n4048, 4060. In civil suits, there would be an in camera and ex parte\nproceeding before a court of appeals, and the court would disclose to the\naggrieved person the materials relating to the surveillance “only if\nnecessary to afford due process to the aggrieved person.” Id. at 32.\n\f FAZAGA V. WALLS 69\n\n Had Congress wanted to limit the use of § 1806(f)’s\nprocedures only to affirmative claims alleging lack of\ncompliance with FISA itself, it could have so specified, as it\ndid in § 1809 and § 1810. Section 1810 creates a private right\nof action only for violations of § 1809. 50 U.S.C. § 1810.\nSection 1809 prohibits surveillance not authorized by FISA,\nthe Wiretap Act, the Stored Communications Act, and the pen\nregister statute. Id. § 1809(a). That § 1809 includes only\ncertain, cross-referenced statutes while § 1810 is limited to\nviolations of § 1809 contrasts with the broad language of\n§ 1806(f) as to the types of litigation covered—litigation\n“pursuant to any . . . statute or rule of the United States.” Id.\n§ 1806(f) (emphasis added).\n\n Furthermore, if—as here—an aggrieved person brings a\nclaim under § 1810 and a claim under another statute or the\nConstitution based on the same electronic surveillance as is\ninvolved in the § 1810 claim, it would make little sense for\n§ 1806(f) to require the court to consider in camera and ex\nparte the evidence relating to electronic surveillance for\npurposes of the claim under § 1810 of FISA but not permit\nthe court to consider the exact same evidence in the exact\nsame way for purposes of the non-FISA claim. Once the\ninformation has been considered by a federal judge in camera\nand ex parte, any risk of disclosure—which Congress\nnecessarily considered exceedingly small or it would not have\npermitted such examination—has already been incurred.\nThere would be no point in dismissing other claims because\nof that same concern.\n\n We are not the first to hold that § 1806(f)’s procedures\nmay be used to adjudicate claims beyond those arising under\n§ 1810. The D.C. Circuit expressly so held in ACLU\n\f70 FAZAGA V. WALLS\n\nFoundation of Southern California v. Barr, 952 F.2d 457\n(D.C. Cir. 1991):\n\n When a district court conducts a § 1806(f)\n review, its task is not simply to decide\n whether the surveillance complied with FISA.\n Section 1806(f) requires the court to decide\n whether the surveillance was “lawfully\n authorized and conducted.” The Constitution\n is law. Once the Attorney General invokes\n § 1806(f), the respondents named in that\n proceeding therefore must present not only\n their statutory but also their constitutional\n claims for decision.\n\nId. at 465; accord United States v. Johnson, 952 F.2d 565,\n571–73, 571 n.4 (1st Cir. 1991) (using § 1806(f)’s in camera\nand ex parte procedures to review constitutional challenges\nto FISA surveillance).\n\n In sum, the plain language, statutory structure, and\nlegislative history demonstrate that Congress intended FISA\nto displace the state secrets privilege and its dismissal remedy\nwith respect to electronic surveillance. Contrary to the\nGovernment’s contention, FISA’s § 1806(f) procedures are to\nbe used when an aggrieved person affirmatively challenges,\nin any civil case, the legality of electronic surveillance or its\nuse in litigation, whether the challenge is under FISA itself,\nthe Constitution, or any other law.31\n\n\n 31\n Some of the Agent Defendants contend that using the § 1806(f)\nprocedures to adjudicate Plaintiffs’ claims would violate their due process\nand Seventh Amendment jury trial rights. This argument is unpersuasive.\nWe and other courts have upheld the constitutionality of the FISA in\n\f FAZAGA V. WALLS 71\n\n E. Aggrieved Persons\n\n We now consider more specifically whether FISA’s\n§ 1806(f) procedures may be used in this case. Because the\nprocedures apply when evidence will be introduced “against\nan aggrieved person,” 50 U.S.C. § 1806(c), and when “any\nmotion or request is made by an aggrieved person,” id.\n§ 1806(f), Plaintiffs must satisfy the definition of an\n“aggrieved person,” see id. § 1801(k).\n\n We addressed the “aggrieved person” requirement in part\nin the discussion of Plaintiffs’ § 1810 claim against the Agent\nDefendants. As we there explained, because Fazaga had a\nreasonable expectation of privacy in his office, and\nAbdelRahim had a reasonable expectation of privacy in his\nhome, car, and phone, Plaintiffs are properly considered\naggrieved persons as to those categories of surveillance. See\nsupra Part I.C. And although we noted that the Agent\nDefendants are entitled to qualified immunity on Plaintiffs’\nFISA § 1810 claim with respect to the recording of\nconversation in the mosque prayer halls, Plaintiffs had a\nreasonable expectation of privacy in those conversations and\nthus are still properly considered aggrieved persons as to that\ncategory of surveillance as well. See supra Part I.B.\n\n\n\ncamera and ex parte procedures with regard to criminal defendants. See\nUnited States v. Abu-Jihaad, 630 F.3d 102, 117–29 (2d Cir. 2010); United\nStates v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005); United States v. Ott,\n827 F.2d 473, 476–77, 477 n.5 (9th Cir. 1987); United States v. Belfield,\n692 F.2d 141, 148–49 (D.C. Cir. 1982); United States v. Mahamud, 838 F.\nSupp. 2d 881, 888–89 (D. Minn. 2012); United States v. Nicholson, 955 F.\nSupp. 588, 590–92, 590 n.3 (E.D. Va. 1997) (collecting cases). Individual\ndefendants in a civil suit are not entitled to more stringent protections than\ncriminal defendants.\n\f72 FAZAGA V. WALLS\n\n Again, because Plaintiffs are properly considered\n“aggrieved” for purposes of FISA, two of the situations\nreferenced in § 1806(f) are directly applicable here. The\nGovernment intends to use “information obtained or derived\nfrom an electronic surveillance” against Plaintiffs, who are\n“aggrieved person[s].” 50 U.S.C. § 1806(c). And Plaintiffs\nare “aggrieved person[s]” who have attempted “to discover or\nobtain applications or orders or other materials relating to\nelectronic surveillance.” Id. § 1806(f).\n\n * * * *\n\n We next turn to considering whether the claims other than\nthe FISA § 1810 claim must be dismissed for reasons\nindependent of the state secrets privilege, limiting ourselves\nto the arguments for dismissal raised in Defendants’ motions\nto dismiss.\n\nIII. Search Claims\n\n In this part, we discuss (1) the Fourth Amendment\ninjunctive relief claim against the official-capacity\ndefendants; and (2) the Fourth Amendment Bivens claim\nagainst the Agent Defendants.\n\n A. Fourth Amendment Injunctive Relief Claim\n Against the Official-Capacity Defendants\n\n The Government’s primary argument for dismissal of the\nconstitutional claims brought against the official-capacity\ndefendants, including the Fourth Amendment claim, is that\nthe injunctive relief sought—the expungement of all records\nunconstitutionally obtained and maintained—is unavailable\nunder the Constitution. Not so.\n\f FAZAGA V. WALLS 73\n\n We have repeatedly and consistently recognized that\nfederal courts can order expungement of records, criminal\nand otherwise, to vindicate constitutional rights.32 The\nPrivacy Act, 5 U.S.C. § 552a, which (1) establishes a set of\npractices governing the collection, maintenance, use, and\ndissemination of information about individuals maintained in\nrecords systems by federal agencies, and (2) creates federal\nclaims for relief for violations of the Act’s substantive\nprovisions, does not displace the availability of expungement\n\n\n\n\n 32\n See, e.g., United States v. Sumner, 226 F.3d 1005, 1012 (9th Cir.\n2000) (“A district court has the power to expunge a criminal record under\n. . . the Constitution itself.”); Burnsworth v. Gunderson, 179 F.3d 771, 775\n(9th Cir. 1999) (holding that expungement of an escape conviction from\nprison records was an appropriate remedy for a due process violation);\nNorman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1275 (9th\nCir. 1998) (explaining that expungement of unconstitutionally obtained\nmedical records “would be an appropriate remedy for the alleged\nviolation”); United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (per\ncuriam) (explaining that “recognized circumstances supporting\nexpunction” include an unlawful or invalid arrest or conviction and\ngovernment misconduct); Fendler v. U.S. Parole Comm’n, 774 F.2d 975,\n979 (9th Cir. 1985) (“Federal courts have the equitable power ‘to order the\nexpungement of Government records where necessary to vindicate rights\nsecured by the Constitution or by statute.’” (quoting Chastain v. Kelley,\n510 F.2d 1232, 1235 (D.C. Cir. 1975))); Maurer v. Pitchess, 691 F.2d 434,\n437 (9th Cir. 1982) (“It is well settled that the federal courts have inherent\nequitable power to order ‘the expungement of local arrest records as an\nappropriate remedy in the wake of police action in violation of\nconstitutional rights.’” (quoting Sullivan v. Murphy, 478 F.2d 938, 968\n(D.C. Cir. 1973))); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (“It\nis established that the federal courts have inherent power to expunge\ncriminal records when necessary to preserve basic legal rights.”) (quoting\nUnited States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976)).\n\f74 FAZAGA V. WALLS\n\nrelief under the Constitution.33 Previous cases involving\nclaims brought under both the Privacy Act and the\nConstitution did not treat the Privacy Act as displacing a\nconstitutional claim, but instead analyzed the claims\nseparately.34 And the circuits that have directly considered\nwhether the Privacy Act displaces parallel constitutional\nremedies have all concluded that a plaintiff may pursue a\nremedy under both the Constitution and the Privacy Act.35\n\n\n 33\n The cases cited by the Government to the contrary are inapposite.\nSee City of Milwaukee, 451 U.S. at 314–16 (addressing the congressional\ndisplacement of federal common law through legislation, not the\nelimination of injunctive remedies available under the Constitution); Bush\nv. Lucas, 462 U.S. 367, 386–88 (1983) (discussing preclusion of a Bivens\nclaim for damages where Congress had already designed a comprehensive\nremedial scheme, not whether a statute can displace a recognized\nconstitutional claim for injunctive relief); Ctr. for Nat’l Sec. Studies v.\nU.S. Dep’t of Justice, 331 F.3d 918, 936–37 (D.C. Cir. 2003) (discussing\nthe displacement of a common law right of access to public records by the\nFreedom of Information Act in a case not involving the Privacy Act or a\nclaim for injunctive relief from an alleged ongoing constitutional\nviolation).\n 34\n See Hewitt v. Grabicki, 794 F.2d 1373, 1377, 1380 (9th Cir. 1986)\n(addressing separately a claim for damages under the Privacy Act and a\nprocedural due process claim); Fendler, 774 F.2d at 979 (considering a\nprisoner’s Privacy Act claims and then, separately, his claim for\nexpungement relief under the Constitution).\n 35\n See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534\n(D.C. Cir. 2015) (“We have repeatedly recognized a plaintiff may request\nexpungement of agency records for both violations of the Privacy Act and\nthe Constitution.”); Clarkson v. IRS, 678 F.2d 1368, 1376 n.13 (11th Cir.\n1982) (“[W]e of course do not intend to suggest that the enactment of the\nPrivacy Act in any way precludes a plaintiff from asserting a\nconstitutional claim for violation of his privacy or First Amendment\nrights. Indeed, several courts have recognized that a plaintiff is free to\nassert both Privacy Act and constitutional claims.”).\n\f FAZAGA V. WALLS 75\n\n In addition to its Privacy Act displacement theory, the\nGovernment contends that even if expungement relief is\notherwise available under the Constitution, it is not available\nhere, as Plaintiffs “advance no plausible claim of an ongoing\nconstitutional violation.” Again, we disagree.\n\n This court has been clear that a determination that records\nwere obtained and retained in violation of the Constitution\nsupports a claim for expungement relief of existing records so\nobtained. As Norman-Bloodsaw explained:\n\n Even if the continued storage, against\n plaintiffs’ wishes, of intimate medical\n information that was allegedly taken from\n them by unconstitutional means does not itself\n constitute a violation of law, it is clearly an\n ongoing “effect” of the allegedly\n unconstitutional and discriminatory testing,\n and expungement of the test results would be\n an appropriate remedy for the alleged\n violation. . . . At the very least, the retention\n of undisputedly intimate medical information\n obtained in an unconstitutional and\n discriminatory manner would constitute a\n continuing “irreparable injury” for purposes\n of equitable relief.\n\n135 F.3d at 1275; see also Wilson v. Webster, 467 F.2d 1282,\n1283–84 (9th Cir. 1972) (holding that plaintiffs had a right to\nshow that records of unlawful arrests “should be expunged,\nfor their continued existence may seriously and unjustifiably\nserve to impair fundamental rights of the persons to whom\nthey relate”).\n\f76 FAZAGA V. WALLS\n\n In short, expungement relief is available under the\nConstitution to remedy the alleged constitutional violations.36\nBecause the Government raises no other argument for\ndismissal of the Fourth Amendment injunctive relief claim,\nit should not have been dismissed.\n\n B. Fourth Amendment Bivens Claim Against the\n Agent Defendants\n\n Alleging that the Agent Defendants violated the Fourth\nAmendment, Plaintiffs seek monetary damages directly under\nthe Constitution under Bivens v. Six Unknown Named Agents\nof Federal Bureau of Narcotics, 403 U.S. 388 (1971). In\nBivens, the Supreme Court “recognized for the first time an\nimplied private action for damages against federal officers\nalleged to have violated a citizen’s constitutional rights.”\nCorr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). “The\npurpose of Bivens is to deter individual federal officers from\ncommitting constitutional violations.” Id. at 70.\n\n Bivens itself concerned a Fourth Amendment violation by\nfederal officers. As we have recognized, a Fourth\nAmendment damages claim premised on unauthorized\nelectronic surveillance by FBI agents and their surrogates\n“fall[s] directly within the coverage of Bivens.” Gibson v.\nUnited States, 781 F.2d 1334, 1341 (9th Cir. 1986); see also\nMitchell v. Forsyth, 472 U.S. 511, 513 (1985) (considering,\nunder Bivens, an alleged “warrantless wiretap” conducted in\nviolation of the Fourth Amendment). Recent cases, however,\nhave severely restricted the availability of Bivens actions for\n\n\n\n 36\n We do not at this stage, of course, address whether Plaintiffs are\nactually entitled to such a remedy.\n\f FAZAGA V. WALLS 77\n\nnew claims and contexts. See Ziglar v. Abbasi, 137 S.Ct.\n1843, 1856–57 (2017).37\n\n Here, the substance of Plaintiffs’ Fourth Amendment\nBivens claim is identical to the allegations raised in their\nFISA § 1810 claim. Under our rulings regarding the reach of\nthe § 1806(f) procedures, almost all of the search-and-seizure\nallegations will be subject to those procedures. Thus,\nregardless of whether a Bivens remedy is available, Plaintiffs’\nunderlying claim—that the Agent Defendants engaged in\nunlawful electronic surveillance violative of the Fourth\nAmendment—would proceed in the same way.\n\n Moreover, if the Fourth Amendment Bivens claim\nproceeds, the Agent Defendants are entitled to qualified\nimmunity on Plaintiffs’ Fourth Amendment Bivens claim to\nthe same extent they are entitled to qualified immunity on\nPlaintiffs’ FISA claim. In both instances, the substantive law\nderives from the Fourth Amendment, and in both instances,\ngovernment officials in their individual capacity are subject\nto liability for damages only if they violated a clearly\nestablished right to freedom from governmental intrusion\nwhere an individual has a reasonable expectation of privacy.\nSee supra Part I.B. Under our earlier rulings, the FISA\nsearch-and-seizure allegations may proceed against only two\nof the Agent Defendants, and only with respect to a narrow\naspect of the alleged surveillance.\n\n In light of the overlap between the Bivens claim and the\nnarrow range of the remaining FISA claim against the Agent\nDefendants that can proceed, it is far from clear that Plaintiffs\n\n 37\n The parties have not briefed before us the impact of Abbasi on the\nBivens claims.\n\f78 FAZAGA V. WALLS\n\nwill continue to press this claim. We therefore decline to\naddress whether Plaintiffs’ Bivens claim remains available\nafter the Supreme Court’s decision in Abbasi. On remand, the\ndistrict court may determine—if necessary—whether a Bivens\nremedy is appropriate for any Fourth Amendment claim\nagainst the Agent Defendants.\n\nIV. Religion Claims\n\n The other set of Plaintiffs’ claims arise from their\nallegation that they were targeted for surveillance solely\nbecause of their religion.38 In this part, we discuss Plaintiffs’\n(1) First and Fifth Amendment injunctive relief claims\nagainst the official-capacity defendants; (2) First and Fifth\nAmendment Bivens claims against the Agent Defendants;\n(3) § 1985(3) claims for violations of the Free Exercise\nClause, Establishment Clause, and equal protection\nguarantee; (4) RFRA claim; (5) Privacy Act claim; and\n(6) FTCA claims. Our focus throughout is whether there are\ngrounds for dismissal independent of the Government’s\ninvocation of the state secrets privilege.\n\n A. First Amendment and Fifth Amendment\n Injunctive Relief Claims Against the Official-\n Capacity Defendants\n\n Plaintiffs maintain that it violates the First Amendment’s\nReligion Clauses and the equal protection component of the\nFifth Amendment for the Government to target them for\nsurveillance because of their adherence to and practice of\n\n\n 38\n The operative complaint alleges as a factual matter that Plaintiffs\nwere surveilled solely because of their religion. We limit our legal\ndiscussion to the facts there alleged.\n\f FAZAGA V. WALLS 79\n\nIslam. The Government does not challenge the First and Fifth\nAmendment claims substantively. It argues only that\ninjunctive relief is unavailable and that litigating the claims\nis not possible without risking the disclosure of state secrets.\nWe have already concluded that injunctive relief, including\nexpungement, is available under the Constitution where there\nis a substantively viable challenge to government action, see\nsupra Part III.A, and that dismissal because of the state\nsecrets concern was improper because of the availability of\nthe § 1806(f) procedures, see supra Part II. Accordingly,\nconsidering only the arguments put forward by the\nGovernment, we conclude that the First and Fifth\nAmendment claims against the official-capacity defendants\nmay go forward.\n\n B. First Amendment and Fifth Amendment Bivens\n Claims Against the Agent Defendants\n\n Plaintiffs seek monetary damages directly under the First\nAmendment’s Establishment and Free Exercise Clauses and\nthe equal protection component of the Fifth Amendment’s\nDue Process Clause, relying on Bivens v. Six Unknown\nNamed Agents.\n\n We will not recognize a Bivens claim where there is “‘any\nalternative, existing process for protecting’ the plaintiff’s\ninterests.” W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d\n1116, 1120 (9th Cir. 2009) (quoting Wilkie v. Robbins,\n551 U.S. 537, 550 (2007)). The existence of such an\nalternative remedy raises the inference that Congress\n“‘expected the Judiciary to stay its Bivens hand’ and ‘refrain\nfrom providing a new and freestanding remedy in damages.’”\nId. (quoting Wilkie, 551 U.S. at 550, 554); see also Abbasi,\n137 S. Ct. at 1863; Schweiker v. Chilicky, 487 U.S. 412, 423\n\f80 FAZAGA V. WALLS\n\n(1988). Accordingly, we “refrain[] from creating a judicially\nimplied remedy even when the available statutory remedies\n‘do not provide complete relief’ for a plaintiff that has\nsuffered a constitutional violation.’” W. Radio Servs.,\n578 F.3d at 1120 (quoting Malesko, 534 U.S. at 69). As long\nas “an avenue for some redress” exists, “bedrock principles\nof separation of powers forclose[s] judicial imposition of a\nnew substantive liability.’” Id. (alteration in original) (quoting\nMalesko, 534 U.S. at 69).\n\n Here, we conclude that the Privacy Act, 5 U.S.C. § 552a,\nand the Religious Freedom Restoration Act, 42 U.S.C.\n§ 2000bb et seq., taken together, provide an alternative\nremedial scheme for some, but not all, of Plaintiffs’ First and\nFifth Amendment Bivens claims. As to the remaining Bivens\nclaims, we remand to the district court to decide whether a\nBivens remedy is available in light of the Supreme Court’s\ndecision in Abbasi.\n\n As to the collection and maintenance of records, Plaintiffs\ncould have, and indeed did, challenge the FBI’s surveillance\nof them under the Privacy Act’s remedial scheme. Again, the\nPrivacy Act, 5 U.S.C. § 552a, creates a set of rules governing\nhow such records should be kept by federal agencies. See\nsupra Part III.A. Under § 552a(e)(7), an “agency that\nmaintains a system of records shall maintain no record\ndescribing how any individual exercises rights guaranteed by\nthe First Amendment unless expressly authorized by statute\nor by the individual about whom the record is maintained or\nunless pertinent to and within the scope of an authorized law\nenforcement activity.”39 When an agency fails to comply with\n\n 39\n The term “maintain” is defined to mean “maintain, collect, use, or\ndisseminate.” 5 U.S.C. § 552a(a)(3).\n\f FAZAGA V. WALLS 81\n\n§ 552a(e)(7), an individual may bring a civil action against\nthe agency for damages. Id. § 552a(g)(1)(D), (g)(4). Thus,\n§ 552a(e)(7) limits the government’s ability to collect,\nmaintain, use, or disseminate information on an individual’s\nreligious activity protected by the First Amendment’s\nReligion Clauses.\n\n We have not addressed the availability of a Bivens action\nwhere the Privacy Act may be applicable. But two other\ncircuits have, and both held that the Privacy Act supplants\nBivens claims for First and Fifth Amendment violations. See\nWilson v. Libby, 535 F.3d 697, 707–08 (D.C. Cir. 2008)\n(holding, in response to claims alleging harm from the\nimproper disclosure of information subject to the Privacy\nAct’s protections, that the Privacy Act is a comprehensive\nremedial scheme that precludes an additional Bivens remedy);\nDownie v. City of Middleburg Heights, 301 F.3d 688, 696 &\nn.7 (6th Cir. 2002) (holding that the Privacy Act displaces\nBivens for claims involving the creation, maintenance, and\ndissemination of false records by federal agency employees).\nWe agree with the analyses in Wilson and Downie.\n\n Although the Privacy Act provides a remedy only against\nthe FBI, not the individual federal officers, the lack of relief\nagainst some potential defendants does not disqualify the\nPrivacy Act as an alternative remedial scheme. Again, a\nBivens remedy may be foreclosed “even when the available\nstatutory remedies ‘do not provide complete relief’ for a\nplaintiff,” as long as “the plaintiff ha[s] an avenue for some\nredress.” W. Radio Servs., 578 F.3d at 1120 (alteration in\noriginal) (emphasis added) (quoting Malesko, 534 U.S. at 69).\nThus, to the extent that Plaintiffs’ Bivens claims involve\nimproper collection and retention of agency records, the\nPrivacy Act precludes such Bivens claims.\n\f82 FAZAGA V. WALLS\n\n As to religious discrimination more generally, we\nconclude that RFRA precludes some, but not all, of Plaintiffs’\nBivens claims. RFRA provides that absent a “compelling\ngovernmental interest” and narrow tailoring, 42 U.S.C.\n§ 2000bb-1(b), the “Government shall not substantially\nburden a person’s exercise of religion even if the burden\nresults from a rule of general applicability.” Id. § 2000bb-\n1(a). The statute was enacted “to provide a claim or defense\nto persons whose religious exercise is substantially burdened\nby government.” Id. § 2000bb(b)(2). It therefore provided\nthat “[a] person whose religious exercise has been burdened\nin violation of this section may assert that violation as a claim\nor defense in a judicial proceeding and obtain appropriate\nrelief against a government.” Id. § 2000bb-1(c). RFRA thus\nprovides a means for Plaintiffs to seek relief for the alleged\nburden of the surveillance itself on their exercise of their\nreligion.\n\n RFRA does not, however, provide an alternative remedial\nscheme for all of Plaintiffs’ discrimination-based Bivens\nclaims. RFRA was enacted in response to Employment\nDivision v. Smith, 494 U.S. 872 (1990), which, in Congress’s\nview, “virtually eliminated the requirement that the\ngovernment justify burdens on religious exercise imposed by\nlaws neutral toward religion,” 42 U.S.C. § 2000bb(a)(4).\nAccordingly, “to restore the compelling interest test . . . and\nto guarantee its application in all cases where free exercise of\nreligion is substantially burdened,” id. § 2000bb(b)(1), RFRA\ndirects its focus on “rule[s] of general applicability” that\n“substantially burden a person’s exercise of religion,” id.\n§ 2000bb-1(a).\n\n Here, many of Plaintiffs’ allegations relate not to neutral\nand generally applicable government action, but to conduct\n\f FAZAGA V. WALLS 83\n\nmotivated by intentional discrimination against Plaintiffs\nbecause of their Muslim faith. Regardless of the magnitude of\nthe burden imposed, “if the object of a law is to infringe upon\nor restrict practices because of their religious motivation, the\nlaw is not neutral” and “is invalid unless it is justified by a\ncompelling interest and is narrowly tailored to advance that\ninterest.” Church of the Lukumi Babalu Aye, Inc. v. City of\nHialeah, 508 U.S. 520, 533 (1993) (emphasis added). It is the\nFree Exercise Clause of the First Amendment—not RFRA—\nthat imposes this requirement.\n\n Moreover, by its terms, RFRA applies only to the “free\nexercise of religion,” 42 U.S.C. § 2000bb(a)(1); indeed, it\nexpressly disclaims any effect on “that portion of the First\nAmendment prohibiting laws respecting the establishment of\nreligion,” id. § 2000bb-4. But intentional religious\ndiscrimination is “subject to heightened scrutiny whether [it]\narise[s] under the Free Exercise Clause, the Establishment\nClause, or the Equal Protection Clause.” Colo. Christian\nUniv. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008)\n(citations omitted). Here, Plaintiffs have raised religion\nclaims based on all three constitutional provisions. Because\nRFRA does not provide an alternative remedial scheme for\nprotecting these interests, we conclude that RFRA does not\npreclude Plaintiffs’ religion-based Bivens claims.\n\n We conclude that the Privacy Act and RFRA, taken\ntogether, function as an alternative remedial scheme for\nprotecting some, but not all, of the interests Plaintiffs seek to\nvindicate via their First and Fifth Amendment Bivens claims.\nThe district court never addressed whether a Bivens remedy\nis available for any of the religion claims because it dismissed\nthe claims in their entirety based on the state secrets privilege.\nIn addition, Abbasi has now clarified the standard for\n\f84 FAZAGA V. WALLS\n\ndetermining when a Bivens remedy is available for a\nparticular alleged constitutional violation. And, as we have\nexplained, the scope of the religion claims to which a Bivens\nremedy might apply is considerably narrower than those\nalleged, given the partial displacement by the Privacy Act and\nRFRA. If asked, the district court should determine on\nremand, applying Abbasi, whether a Bivens remedy is\navailable to the degree the damages remedy is not displaced\nby the Privacy Act and RFRA.\n\n C. 42 U.S.C. § 1985(3) Claims Against the Agent\n Defendants\n\n Plaintiffs allege that the Agent Defendants conspired to\ndeprive Plaintiffs of their rights under the First Amendment’s\nEstablishment and Free Exercise Clauses and the due process\nguarantee of the Fifth Amendment, in violation of 42 U.S.C.\n§ 1985(3).\n\n To state a violation of § 1985(3), Plaintiffs must “allege\nand prove four elements”:\n\n (1) a conspiracy; (2) for the purpose of\n depriving, either directly or indirectly, any\n person or class of persons of the equal\n protection of the laws, or of equal privileges\n and immunities under the laws; and (3) an act\n in furtherance of the conspiracy; (4) whereby\n a person is either injured in his person or\n property or deprived of any right or privilege\n of a citizen of the United States.\n\nUnited Bhd. of Carpenters & Joiners of Am., Local 610 v.\nScott, 463 U.S. 825, 828–29 (1983). The Defendants attack\n\f FAZAGA V. WALLS 85\n\nthese claims on various grounds, but we reach only\none—whether § 1985(3) conspiracies among employees of\nthe same government entity are barred by the intracorporate\nconspiracy doctrine.\n\n Abbasi makes clear that intracorporate liability was not\nclearly established at the time of the events in this case and\nthat the Agent Defendants are therefore entitled to qualified\nimmunity from liability under § 1985(3). See 137 S. Ct. at\n1866.\n\n In Abbasi, men of Arab and South Asian descent detained\nin the aftermath of September 11 sued two wardens of the\nfederal detention center in Brooklyn in which they were held,\nalong with several high-level Executive Branch officials who\nwere alleged to have authorized their detention. Id. at 1853.\nThey alleged, among other claims, a conspiracy among the\ndefendants to deprive them of the equal protection of the laws\nunder § 1985(3).40 Id. at 1853–54. Abbasi held that, even\nassuming these allegations to be “true and well pleaded,” the\ndefendants were entitled to qualified immunity on the\n§ 1985(3) claim. Id. at 1866–67. It was not “clearly\nestablished” at the time, the Court held, that the\nintracorporate conspiracy doctrine did not bar § 1985(3)\nliability for employees of the same government department\nwho conspired among themselves. Id. at 1867–68. “[T]he fact\nthat the courts are divided as to whether or not a § 1985(3)\nconspiracy can arise from official discussions between or\namong agents of the same entity demonstrates that the law on\n\n\n 40\n Specifically, the plaintiffs alleged that these officials “conspired\nwith one another to hold respondents in harsh conditions because of their\nactual or apparent race, religion, or national origin.” Abbasi, 137 S. Ct. at\n1854.\n\f86 FAZAGA V. WALLS\n\nthe point is not well established.” Id. at 1868. “[R]easonable\nofficials in petitioners’ positions would not have known, and\ncould not have predicted, that § 1985(3) prohibited their joint\nconsultations.” Id. at 1867. The Court declined, however, to\nresolve the issue on the merits. Id.\n\n Abbasi controls. Although the underlying facts here differ\nfrom those in Abbasi, the dispositive issue here, as in Abbasi,\nis whether the Agent Defendants could reasonably have\nknown that agreements entered into or agreed-upon policies\ndevised with other employees of the FBI could subject them\nto conspiracy liability under § 1985(3). At the time the\nPlaintiffs allege they were surveilled, neither this court nor\nthe Supreme Court had held that an intracorporate agreement\ncould subject federal officials to liability under § 1985(3),\nand the circuits that had decided the issue were split.41 There\nwas therefore, as in Abbasi, no clearly established law on the\nquestion. As the Agent Defendants are entitled to qualified\nimmunity on the § 1985(3) allegations in the complaint, we\naffirm their dismissal on that ground.\n\n\n 41\n Two circuits have held that the intracorporate conspiracy doctrine\ndoes not extend to civil rights cases. See Brever v. Rockwell Int’l Corp.,\n40 F.3d 1119, 1127 (10th Cir. 1994); Novotny v. Great Am. Fed. Sav. &\nLoan Ass’n, 584 F.2d 1235, 1257–58 (3d Cir. 1978) (en banc), vacated on\nother grounds, 442 U.S. 366 (1979); see also Stathos v. Bowden, 728 F.2d\n15, 20–21 (1st Cir. 1984) (expressing “doubt” that the intracorporate\nconspiracy doctrine extends to conspiracy under § 1985(3)). The majority\nof the circuits have reached a contrary result. See Hartline v. Gallo,\n546 F.3d 95, 99 n.3 (2d Cir. 2008); Meyers v. Starke, 420 F.3d 738, 742\n(8th Cir. 2005); Dickerson v. Alachua Cty. Comm’n, 200 F.3d 761,\n767–68 (11th Cir. 2000); Benningfield v. City of Houston, 157 F.3d 369,\n378 (5th Cir. 1998); Wright v. Ill. Dep’t of Children & Family Servs.,\n40 F.3d 1492, 1508 (7th Cir. 1994); Hull v. Cuyahoga Valley Joint\nVocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509–10 (6th Cir. 1991);\nBuschi v. Kirven, 775 F.2d 1240, 1252–53 (4th Cir. 1985).\n\f FAZAGA V. WALLS 87\n\n D. Religious Freedom Restoration Act Claim Against\n the Agent Defendants and Government Defendants\n\n Plaintiffs allege that the Defendants violated the Religious\nFreedom Restoration Act, 42 U.S.C. § 2000bb, by\nsubstantially burdening Plaintiffs’ exercise of religion, and\ndid so neither in furtherance of a compelling governmental\ninterest nor by adopting the least restrictive means of\nfurthering any such interest. The Government Defendants\noffer no argument for dismissal of the RFRA claim other than\nthe state secrets privilege. The Agent Defendants, however,\ncontend that they are entitled to qualified immunity on the\nRFRA claim because Plaintiffs failed to plead a substantial\nburden on their religion, and if they did so plead, no clearly\nestablished law supported that conclusion at the relevant\ntime.42\n\n To establish a prima facie claim under RFRA, a plaintiff\nmust “present evidence sufficient to allow a trier of fact\nrationally to find the existence of two elements.” Navajo\nNation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir.\n2008) (en banc). “First, the activities the plaintiff claims are\n\n 42\n The parties do not dispute that qualified immunity is an available\ndefense to a RFRA claim. We therefore assume it is. See Padilla v. Yoo,\n678 F.3d 748, 768 (9th Cir. 2012); Lebron v. Rumsfeld, 670 F.3d 540, 560\n(4th Cir. 2012).\n\n Tidwell and Walls also contend that Plaintiffs’ RFRA claim was\nproperly dismissed because RFRA does not permit damages suits against\nindividual-capacity defendants. Because we affirm dismissal on another\nground, we do not reach that issue. We note, however, that at least two\nother circuits have held that damages are available for RFRA suits against\nindividual-capacity defendants. See Tanvir v. Tanzin, 894 F.3d 449, 467\n(2d Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir.\n2016).\n\f88 FAZAGA V. WALLS\n\nburdened by the government action must be an ‘exercise of\nreligion.’” Id. (quoting 42 U.S.C. § 2000bb-1(a)). “Second,\nthe government action must ‘substantially burden’ the\nplaintiff’s exercise of religion.” Id. Once a plaintiff has\nestablished those elements, “the burden of persuasion shifts\nto the government to prove that the challenged government\naction is in furtherance of a ‘compelling governmental\ninterest’ and is implemented by ‘the least restrictive means.’”\nId. (quoting 42 U.S.C. § 2000bb-1(b)).\n\n “Under RFRA, a ‘substantial burden’ is imposed only\nwhen individuals are forced to choose between following the\ntenets of their religion and receiving a governmental benefit\n. . . or coerced to act contrary to their religious beliefs by the\nthreat of civil or criminal sanctions . . . .” Id. at 1069–70; see\nalso Oklevueha Native Am. Church of Haw., Inc. v. Lynch,\n828 F.3d 1012, 1016 (9th Cir. 2016). An effect on an\nindividual’s “subjective, emotional religious experience”\ndoes not constitute a substantial burden, Navajo Nation,\n535 F.3d at 1070, nor does “a government action that\ndecreases the spirituality, the fervor, or the satisfaction with\nwhich a believer practices his religion,” id. at 1063.\n\n Plaintiffs do allege that they altered their religious\npractices as a result of the FBI’s surveillance: Malik trimmed\nhis beard, stopped regularly wearing a skull cap, decreased\nhis attendance at the mosque, and became less welcoming to\nnewcomers than he believes his religion requires.\nAbdelRahim “significantly decreased his attendance to\nmosque,” limited his donations to mosque institutions, and\nbecame less welcoming to newcomers than he believes his\nreligion requires. Fazaga, who provided counseling at the\nmosque as an imam and an intern therapist, stopped\n\f FAZAGA V. WALLS 89\n\ncounseling congregants at the mosque because he feared the\nconversations would be monitored and thus not confidential.\n\n But it was not clearly established in 2006 or 2007 that\ncovert surveillance conducted on the basis of religion would\nmeet the RFRA standards for constituting a substantial\nreligious burden on individual congregants. There simply was\nno case law in 2006 or 2007 that would have put the Agent\nDefendants on notice that covert surveillance on the basis of\nreligion could violate RFRA. And at least two cases from our\ncircuit could be read to point in the opposite direction, though\nthey were brought under the First Amendment’s Religion\nClauses rather than under RFRA. See Vernon v. City of Los\nAngeles, 27 F.3d 1385, 1394 (9th Cir. 1994); Presbyterian\nChurch, 870 F.2d at 527.43\n\n Presbyterian Church concerned an undercover\ninvestigation by INS of the sanctuary movement. 870 F.2d at\n520. Over nearly a year, several INS agents infiltrated four\nchurches in Arizona, attending and secretly recording church\nservices. Id. The covert surveillance was later publicly\ndisclosed in the course of criminal proceedings against\nindividuals involved with the sanctuary movement. Id. The\nfour churches brought suit, alleging a violation of their right\nto free exercise of religion. Id. We held that the individual\n\n\n 43\n Presbyterian Church predates Employment Division v. Smith, which\ndeclined to use the compelling interest test from Sherbert v. Verner,\n374 U.S. 398 (1963). Smith, 494 U.S. at 883–85. The other case, Vernon,\npostdates RFRA, which in 1993 restored Sherbert’s compelling interest\ntest. See 27 F.3d at 1393 n.1; see also 42 U.S.C. § 2000bb(b). Although\nthe compelling interest balancing test was in flux during this period, the\nnotion that a burden on religious practice was required to state a claim was\nnot. RFRA continued the same substantial burden standard as was\nrequired by the constitutional cases. See Vernon, 27 F.3d at 1393.\n\f90 FAZAGA V. WALLS\n\nINS agents named as defendants were entitled to qualified\nimmunity because there was “no support in the preexisting\ncase law” to suggest that “it must have been apparent to INS\nofficials that undercover electronic surveillance of church\nservices without a warrant and without probable cause\nviolated the churches’ clearly established rights under the\nFirst . . . Amendment[].” Id. at 527.\n\n In Vernon, the Los Angeles Police Department (“LAPD”)\ninvestigated Vernon, the Assistant Chief of Police of the\nLAPD, in response to allegations that Vernon’s religious\nbeliefs had interfered with his ability or willingness to fairly\nperform his official duties. 27 F.3d at 1389. Vernon filed a\n§ 1983 action, maintaining that the preinvestigation activities\nand the investigation itself violated the Free Exercise Clause.\nId. at 1390. In his complaint, Vernon alleged that the\ninvestigation “chilled [him] in the exercise of his religious\nbeliefs, fearing that he can no longer worship as he chooses,\nconsult with his ministers and the elders of his church,\nparticipate in Christian fellowship and give public testimony\nto his faith without severe consequences.” Id. at 1394. We\nheld that Vernon failed to demonstrate a substantial burden\non his religious observance and so affirmed the district\ncourt’s dismissal of his free exercise claim. Id. at 1395. We\nnoted that Vernon “failed to show any concrete and\ndemonstrable injury.” Id. “Vernon complain[ed] that the\nexistence of a government investigation has discouraged him\nfrom pursuing his personal religious beliefs and practices—in\nother words, mere subjective chilling effects with neither ‘a\nclaim of specific present objective harm [n]or a threat of\nspecific future harm.’” Id. (quoting Laird v. Tatum, 408 U.S.\n1, 14 (1972)).\n\f FAZAGA V. WALLS 91\n\n Vernon and Presbyterian Church were decided before the\nsurveillance Plaintiffs allege substantially burdened their\nexercise of religion. Both cases cast doubt upon whether\nsurveillance such as that alleged here constitutes a substantial\nburden upon religious practice. There is no pertinent case law\nindicating otherwise. It was therefore not clearly established\nin 2006 or 2007 that Defendants’ actions violated Plaintiffs’\nfreedom of religion, protected by RFRA.44\n\n As to the Agent Defendants, therefore, we affirm the\ndismissal of the RFRA claim. But because the Government\nDefendants are not subject to the same qualified immunity\nanalysis and made no arguments in support of dismissing the\nRFRA claim other than the state secrets privilege, we hold\nthat the complaint substantively states a RFRA claim against\nthe Government Defendants.45\n\n\n\n\n 44\n These cases do not, however, entitle the Agent Defendants to\nqualified immunity as to claims involving intentional discrimination based\non Plaintiffs’ religion. As discussed in supra Part IV.B, those claims do\nnot require that Plaintiffs show a substantial burden on the exercise of\ntheir religion. That principle was clearly established well before the events\nin this case. See, e.g., Lukumi, 508 U.S. at 546; Larson v. Valente,\n456 U.S. 228, 244 (1982). Thus, to the extent that Plaintiffs’ religion-\nbased Bivens claims may proceed, the Agent Defendants are not entitled\nto qualified immunity for those claims.\n 45\n We do not address any other defenses the Government Defendants\nmay raise before the district court in response to Plaintiffs’ RFRA claim.\n\f92 FAZAGA V. WALLS\n\n E. Privacy Act Claim Against the FBI\n\n Plaintiffs allege that the FBI violated the Privacy Act,\n5 U.S.C. § 552a(e)(7),46 by collecting and maintaining records\ndescribing how Plaintiffs exercised their First Amendment\nrights. As a remedy, Plaintiffs seek only injunctive relief\nordering the destruction or return of unlawfully obtained\ninformation. Cell Associates, Inc. v. National Institutes of\nHealth, 579 F.2d 1155 (9th Cir. 1978), which interpreted the\nscope of Privacy Act remedies, precludes such injunctive\nrelief.\n\n The “Civil remedies” section of the Privacy Act, 5 U.S.C.\n§ 552a(g), lists four types of agency misconduct and the\nremedies applicable to each. The statute expressly provides\nthat injunctive relief is available when an agency improperly\ndenies a request to amend or disclose an individual’s record,\nsee 5 U.S.C. § 552a(g)(1)(A), (2)(A), (1)(B), (3)(A), but\nprovides only for damages when the agency “fails to maintain\nany record” with the “accuracy, relevance, timeliness, and\ncompleteness” required for fairness, id. § 552a(g)(1)(C), or if\nthe agency “fails to comply with any other provision” of\nthe Privacy Act, id. § 552a(g)(1)(D). See id. § 552a(g)(4).\nCell Associates concluded that this distinction was\npurposeful—that is, that Congress intended to limit the\navailability of injunctive relief to the categories of agency\n\n\n 46\n The header to Plaintiffs’ Eighth Cause of Action reads broadly,\n“Violation of the Privacy Act, 5 U.S.C. § 552a(a)–(l).” As actually\npleaded and briefed, however, the substance of Plaintiffs’ Privacy Act\nclaim is limited to § 552a(e)(7). The complaint states that “Defendant FBI\n. . . collected and maintained records . . . in violation of 5 U.S.C.\n§ 552a(e)(7).” And Plaintiffs’ reply brief states that they “seek\nexpungement . . . under 5 U.S.C. § 552a(e)(7).”\n\f FAZAGA V. WALLS 93\n\nmisconduct for which injunctive relief was specified as a\nremedy:\n\n The addition of a right to injunctive relief for\n one type of violation, coupled with the failure\n to provide injunctive relief for another type of\n violation, suggests that Congress knew what\n it was about and intended the remedies\n specified in the Act to be exclusive. While the\n right to damages might seem an inadequate\n safeguard against unwarranted disclosures of\n agency records, we think it plain that\n Congress limited injunctive relief to the\n situations described in 5 U.S.C.\n § 552a(g)(1)(A) and (2) and (1)(B) and (3).\n\n579 F.2d at 1161.\n\n A violation of § 552a(e)(7) falls within the catch-all\nremedy provision, applicable if the agency “fails to comply\nwith any other provision” of the Privacy Act. 5 U.S.C.\n§ 552a(g)(1)(D). As the statute does not expressly provide for\ninjunctive relief for a violation of this catch-all provision,\nCell Associates precludes injunctive relief for a violation of\n§ 552a(e)(7).\n\n Plaintiffs attempt to avoid the precedential impact of Cell\nAssociates on the ground that it “nowhere mentions Section\n552a(e)(7).” That is so, but the holding of Cell Associates\nnonetheless applies directly to this case. The Privacy Act\nspecifies that injunctive relief is available for violations of\nsome provisions of the Act, but not for a violation of\n§ 552a(e)(7). Under Cell Associates, Plaintiffs cannot obtain\n\f94 FAZAGA V. WALLS\n\ninjunctive relief except for violations as to which such relief\nis specifically permitted.47\n\n Plaintiffs’ complaint expressly provides that “[t]he FBI is\nsued for injunctive relief only.” Accordingly, because their\nsole requested remedy is unavailable, Plaintiffs fail to state a\nclaim under the Privacy Act.\n\n F. FTCA Claims\n\n The FTCA constitutes a waiver of sovereign immunity\n“under circumstances where the United States, if a private\nperson, would be liable to the claimant in accordance with the\nlaw of the place where the act or omission occurred.”\n28 U.S.C. § 1346(b)(1). “State substantive law applies” in\nFTCA actions. Liebsack v. United States, 731 F.3d 850, 856\n(9th Cir. 2013). If an individual federal employee is sued, the\nUnited States shall, given certain conditions are satisfied, “be\nsubstituted as the party defendant.” 28 U.S.C. § 2679(d)(1).\n\n Plaintiffs allege that the United States is liable under the\nFTCA for invasion of privacy under California law, violation\nof the California constitutional right to privacy, violation of\nCalifornia Civil Code § 52.1, and intentional infliction of\nemotional distress. We first consider Defendants’\njurisdictional arguments, and then discuss their implications\nfor the substantive FTCA claims.\n\n\n\n 47\n Plaintiffs also argue that MacPherson v. IRS, 803 F.2d 479 (9th Cir.\n1986) is “binding Ninth Circuit authority . . . [that] makes clear that courts\nhave authority to order expungement of records maintained in violation of\nits [§ 552a(e)(7)] requirements.” But MacPherson does not state whether\nthe plaintiff there sought injunctive relief and so is unclear on this point.\n\f FAZAGA V. WALLS 95\n\n 1. FTCA Judgment Bar\n\n The FTCA’s judgment bar provides that “[t]he judgment\nin an action under [the FTCA] shall constitute a complete bar\nto any action by the claimant, by reason of the same subject\nmatter, against the employee of the government whose act or\nomission gave rise to the claim.” 28 U.S.C. § 2676. The\njudgment bar provision has no application here.\n\n The judgment bar provision precludes claims against\nindividual defendants in two circumstances: (1) where a\nplaintiff brings an FTCA claim against the government and\nnon-FTCA claims against individual defendants in the same\naction and obtains a judgment against the government, see\nKreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992);\nand (2) where the plaintiff brings an FTCA claim against the\ngovernment, judgment is entered in favor of either party, and\nthe plaintiff then brings a subsequent non-FTCA action\nagainst individual defendants, see Gasho v. United States, 39\nF.3d 1420, 1437–38 (9th Cir. 1994); Ting v. United States,\n927 F.2d 1504, 1513 n.10 (9th Cir. 1991). The purposes of\nthis judgment bar are “to prevent dual recoveries,” Kreines,\n959 F.2d at 838, to “serve[] the interests of judicial\neconomy,” and to “foster more efficient settlement of\nclaims,” by “encourag[ing plaintiffs] to pursue their claims\nconcurrently in the same action, instead of in separate\nactions,” Gasho, 39 F.3d at 1438.\n\n Neither of those two circumstances, nor their attendant\nrisks, is present here. Plaintiffs brought their FTCA claim,\nnecessarily, against the United States, and their non-FTCA\nclaims against the Agent Defendants, in the same action.\nThey have not obtained a judgment against the government.\nKreines held that “an FTCA judgment in favor of the\n\f96 FAZAGA V. WALLS\n\ngovernment did not bar the Bivens claim [against individual\nemployees] when the judgments are ‘contemporaneous’ and\npart of the same action.” Gasho, 39 F.3d at 1437 (quoting\nKreines, 959 F.2d at 838). By “contemporaneous,” Kreines\ndid not require that judgments on the FTCA and other claims\nbe entered simultaneously, but rather that they result from the\nsame action.\n\n The FTCA’s judgment bar does not operate to preclude\nPlaintiffs’ claims against the Agent Defendants.\n\n 2. FTCA Discretionary Function Exception\n\n The discretionary function exception provides that the\nFTCA shall not apply to “[a]ny claim based upon an act or\nomission of an employee of the Government, exercising due\ncare, in the execution of a statute or regulation, . . . or based\nupon the exercise or performance or the failure to exercise or\nperform a discretionary function or duty on the part of a\nfederal agency or an employee of the Government, whether\nor not the discretion involved be abused.” 28 U.S.C.\n§ 2680(a). “[T]he discretionary function exception will not\napply when a federal statute, regulation, or policy specifically\nprescribes a course of action for an employee to follow.”\nBerkovitz v. United States, 486 U.S. 531, 536 (1988).\n“[G]overnmental conduct cannot be discretionary if it violates\na legal mandate.” Galvin v. Hay, 374 F.3d 739, 758 (9th Cir.\n2004) (quoting Nurse v. United States, 226 F.3d 996, 1002\n(9th Cir. 2000)). Moreover, “the Constitution can limit the\ndiscretion of federal officials such that the FTCA’s\ndiscretionary function exception will not apply.” Id. (quoting\nNurse, 226 F.3d at 1002 n.2).\n\f FAZAGA V. WALLS 97\n\n We cannot determine the applicability of the discretionary\nfunction exception at this stage in the litigation. If, on\nremand, the district court determines that Defendants did not\nviolate any federal constitutional or statutory directives, the\ndiscretionary function exception will bar Plaintiffs’ FTCA\nclaims.48 But if the district court instead determines that\nDefendants did violate a nondiscretionary federal\nconstitutional or statutory directive, the FTCA claims may be\nable to proceed to that degree.\n\n Because applicability of the discretionary function will\nlargely turn on the district court’s ultimate resolution of the\nmerits of Plaintiffs’ various federal constitutional and\nstatutory claims, discussing whether Plaintiffs substantively\nstate claims as to the state laws underlying the FTCA claim\nwould be premature. We therefore decline to do so at this\njuncture.\n\nV. Procedures on Remand\n\n On remand, the FISA and Fourth Amendment claims, to\nthe extent we have held they are validly pleaded in the\ncomplaint and not subject to qualified immunity, should\nproceed as usual. See supra Part II.B. In light of our\nconclusion regarding the reach of FISA § 1806(f), the district\ncourt should, using § 1806(f)’s ex parte and in camera\nprocedures, review any “materials relating to the surveillance\nas may be necessary,” 50 U.S.C. § 1806(f), including the\nevidence over which the Attorney General asserted the state\nsecrets privilege, to determine whether the electronic\n\n\n 48\n We note that the judgment bar, 28 U.S.C. § 2676, does not apply to\nFTCA claims dismissed under the discretionary function exception. See\nSimmons v. Himmelreich, 136 S. Ct. 1843, 1847–48 (2016).\n\f98 FAZAGA V. WALLS\n\nsurveillance was lawfully authorized and conducted. That\ndetermination will include, to the extent we have concluded\nthat the complaint states a claim regarding each such\nprovision, whether Defendants violated any of the\nconstitutional and statutory provisions asserted by Plaintiffs\nin their complaint. As permitted by Congress, “[i]n making\nthis determination, the court may disclose to [plaintiffs],\nunder appropriate security procedures and protective orders,\nportions of the application, order, or other materials relating\nto the surveillance only where such disclosure is necessary to\nmake an accurate determination of the legality of the\nsurveillance.” Id.49\n\n The Government suggests that Plaintiffs’ religion claims\ncannot be resolved using the § 1806(f) procedures because, as\nthe district court found, “the central subject matter [of the\ncase] is Operation Flex, a group of counterterrorism\ninvestigations that extend well beyond the purview of\nelectronic surveillance.” Although the larger factual context\nof the case involves more than electronic surveillance, a\ncareful review of the “Claims for Relief” section of the\ncomplaint convinces us that all of Plaintiffs’ legal causes of\naction relate to electronic surveillance, at least for the most\n\n\n\n\n 49\n Our circuit has not addressed the applicable standard for reviewing\nthe district court’s decision not to disclose FISA materials. Other circuits,\nhowever, have adopted an abuse of discretion standard. See United States\nv. Ali, 799 F.3d 1008, 1022 (8th Cir. 2015); United States v. El-Mezain,\n664 F.3d 467, 567 (5th Cir. 2011); United States v. Damrah, 412 F.3d\n618, 624 (6th Cir. 2005); United States v. Badia, 827 F.2d 1458, 1464\n(11th Cir. 1987); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir.\n1982).\n\f FAZAGA V. WALLS 99\n\npart, and in nearly all instances entirely,50 and thus require a\ndetermination as to the lawfulness of the surveillance.\nMoreover, § 1806(f) provides that the district court may\nconsider “other materials relating to the surveillance as may\nbe necessary to determine whether the surveillance of the\naggrieved person was lawfully authorized and conducted,”\nthereby providing for consideration of both parties’ factual\nsubmissions and legal contentions regarding the background\nof the surveillance. Id. (emphasis added).\n\n As we concluded in Part I, supra, not all of the\nsurveillance detailed in the complaint as the basis for\nPlaintiffs’ legal claims constitutes electronic surveillance as\ndefined by FISA. See id. § 1801(k). Only the surveillance in\nthe mosque prayer hall and of Fazaga’s office and\nAbdelRahim’s house fits within FISA’s definition. But once\nthe district court uses § 1806(f)’s procedures to review the\nstate secrets evidence in camera and ex parte to determine the\nlawfulness of that surveillance, we see no reason why the\ndistrict court could not then rely on its assessment of the\nevidence—taking care to avoid its public disclosure—to\ndetermine the lawfulness of the surveillance falling outside\nFISA’s purview, should Plaintiffs wish to proceed with their\nclaims as applied to that set of activity.\n\n\n\n 50\n Two of Plaintiffs’ causes of action can be read to encompass more\nconduct than just electronic surveillance. Plaintiffs’ RFRA claim, their\nFifth Cause of Action, is not limited to surveillance. Plaintiffs broadly\nallege that “[t]he actions of Defendants substantially burdened [their]\nexercise of religion.” The FTCA claim for intentional infliction of\nemotional distress, the Eleventh Cause of Action, is also more broadly\npleaded. It is far from clear, however, that as actually litigated, either\nclaim will involve more than the electronic surveillance that is otherwise\nthe focus of the lawsuit.\n\f100 FAZAGA V. WALLS\n\n The same categories of evidence will be required to\ndefend against Plaintiffs’ surviving claims no matter the\nparticular surveillance at issue. That is, whether the official-\ncapacity defendants targeted Plaintiffs for surveillance in\nviolation of the First Amendment, for example, will in all\nlikelihood be proven or defended against using the same set\nof evidence regardless of whether the court considers the\nclaim in terms of surveillance in the mosque prayer hall or\nconversations to which Monteilh was a party. It would be an\nexercise in empty formalism to require the district court to\nconsider the state secrets evidence in camera and ex parte to\ndetermine the lawfulness of the FISA surveillance, but then\nignore that same evidence and so dismiss Plaintiffs’ surviving\nclaims as to the non-FISA surveillance. As we explained in\nour discussion of why FISA’s § 1806(f) procedures may be\nused both for claims arising under § 1810 and under other\nconstitutional and statutory provisions, see supra Part II.D,\nonce the sensitive information has been considered in camera\nand ex parte, the small risk of disclosure—a risk Congress\nthought too small to preclude careful ex parte, in camera\nconsideration by a federal judge—has already been incurred.\nThe scope of the state secrets privilege “is limited by its\nunderlying purpose.” Halpern v. United States, 258 F.2d 36,\n44 (2d Cir. 1958) (quoting Roviaro v. United States, 353 U.S.\n53, 60 (1957)). It would stretch the privilege well beyond its\npurpose to require the district court to consider the state\nsecrets evidence in camera and ex parte for one purpose, but\nthen ignore it and dismiss closely related claims involving the\nexact same set of parties, facts, and alleged legal violations.51\n\n\n\n\n 51\n None of Plaintiffs’ legal claims is pleaded to apply only to a\nparticular subset of surveillance activity.\n\f FAZAGA V. WALLS 101\n\n Should our prediction of the close overlap between the\ninformation to be reviewed under the FISA procedures to\ndetermine the validity of FISA-covered electronic\nsurveillance and the information pertinent to other aspects of\nthe religion claims prove inaccurate, or should the FISA-\ncovered electronic surveillance drop out of consideration,52\nthe Government is free to interpose a specifically tailored,\nproperly raised state secrets privilege defense. Should the\nGovernment do so, at that point, the district court should\nconsider anew whether “simply excluding or otherwise\nwalling off the privileged information may suffice to protect\nthe state secrets,” Jeppesen, 614 F.3d at 1082, or whether\ndismissal is required because “the privilege deprives the\ndefendant[s] of information that would otherwise give the\ndefendant[s] a valid defense to the claim[s],” id. at 1083\n(quoting Kasza, 133 F.3d at 1166), or because the privileged\nand nonprivileged evidence are “inseparable” such that\n“litigating the case to a judgment on the merits would present\nan unacceptable risk of disclosing state secrets,” id. Because\nJeppesen did not define “valid defense,” we briefly address\nits meaning, so as to provide guidance to the district court on\nremand and to future courts in our circuit addressing the\nimplications of the Government’s invocation of the state\nsecrets privilege.\n\n The most useful discussion of the meaning of “valid\ndefense” in the state secrets context is in the D.C. Circuit’s\ndecision in In re Sealed Case, 494 F.3d 139, cited by\nJeppensen, 614 F.3d at 1083. We find the D.C. Circuit’s\ndefinition and reasoning persuasive, and so adopt it.\nCritically, In re Sealed Case explained that “[a] ‘valid\n\n 52\n As could happen if, for instance, Plaintiffs are unable to substantiate\ntheir factual allegations as to the occurrence of the surveillance.\n\f102 FAZAGA V. WALLS\n\ndefense’ . . . is meritorious and not merely plausible and\nwould require judgment for the defendant.” 494 F.3d at 149.\nThe state secrets privilege does not require “dismissal of a\ncomplaint for any plausible or colorable defense.” Id. at 150.\nOtherwise, “virtually every case in which the United States\nsuccessfully invokes the state secrets privilege would need to\nbe dismissed.” Id. Such an approach would constitute judicial\nabdication from the responsibility to decide cases on the basis\nof evidence “in favor of a system of conjecture.” Id. And the\nSupreme Court has cautioned against “precluding review of\nconstitutional claims” and “broadly interpreting evidentiary\nprivileges.” Id. at 151 (first citing Webster v. Doe, 486 U.S.\n592, 603–04 (1988), and then citing United States v. Nixon,\n418 U.S. 683, 710 (1974)). “[A]llowing the mere prospect of\na privilege defense,” without more, “to thwart a citizen’s\nefforts to vindicate his or her constitutional rights would run\nafoul” of those cautions. Id. Thus, where the government\ncontends that dismissal is required because the state secrets\nprivilege inhibits it from presenting a valid defense, the\ndistrict court may properly dismiss the complaint only if it\nconducts an “appropriately tailored in camera review of the\nprivileged record,” id., and determines that defendants have\na legally meritorious defense that prevents recovery by the\nplaintiffs, id. at 149 & n.4.\n\n CONCLUSION\n\n The legal questions presented in this case have been many\nand difficult. We answer them on purely legal grounds, but of\ncourse realize that those legal answers will reverberate in the\ncontext of the larger ongoing national conversation about how\nreasonably to understand and respond to the threats posed by\nterrorism without fueling a climate of fear rooted in\nstereotypes and discrimination. In a previous case, we\n\f FAZAGA V. WALLS 103\n\nobserved that the state secrets doctrine strikes a “difficult\nbalance . . . between fundamental principles of our liberty,\nincluding justice, transparency, accountability and national\nsecurity,” and sometimes requires us to confront “an\nirreconcilable conflict” between those principles. Jeppesen,\n614 F.3d at 1073. In holding, for the reasons stated, that the\nGovernment’s assertion of the state secrets privilege does not\nwarrant dismissal of this litigation in its entirety, we, too,\nhave recognized the need for balance, but also have heeded\nthe conclusion at the heart of Congress’s enactment of FISA:\nthe fundamental principles of liberty include devising means\nof forwarding accountability while assuring national security.\n\n Having carefully considered the Defendants’ various\narguments for dismissal other than the state secrets privilege,\nwe conclude that some of Plaintiffs’ search and religion\nallegations state a claim, while others do not. We therefore\naffirm in part and reverse in part the district court’s orders,\nand remand for further proceedings in accordance with this\nopinion.\n\n AFFIRMED in part, REVERSED in part, and\nREMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372310/", "author_raw": "BERZON, Circuit Judge:"}]}	RONALD M GOULD	MARSHA S BERZON	GEORGE CARAM STEEH III	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4595057/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,099	UNITED STATES of America, Plaintiff-Appellee, v. Donald ILEY, Defendant-Appellant.	United States v. Iley	2019-02-04	17-1269	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Lucero, Hartz, Holmes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887959/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887960/", "author_raw": ""}, {"author": "HOLMES, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n February 4, 2019\n PUBLISH Elisabeth A. Shumaker\n Clerk of Court\n UNITED STATES COURT OF APPEALS\n\n TENTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-1269\n\n DONALD ILEY,\n\n Defendant-Appellant.\n\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:16-CR-00284-CMA-1)\n\n\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\nDefender, with him on the briefs), Office of the Federal Public Defender, Denver,\nColorado, for Defendant-Appellant.\n\nKarl L. Schock, Assistant United States Attorney (Robert C. Troyer, United States\nAttorney, with him on the brief), Office of the United States Attorney, Denver,\nColorado, for Plaintiff-Appellee.\n\n\nBefore LUCERO, HARTZ, and HOLMES, Circuit Judges.\n\n\nHOLMES, Circuit Judge.\n\n For crimes of fraud and deceit, § 2B1.1(b)(9)(C) of the U.S. Sentencing\n\nGuidelines Manual (“U.S.S.G.” or “Guidelines”) provides for a two-level\n\nsentencing enhancement if the defendant’s offense conduct violated “any prior,\n\nspecific judicial or administrative order.” After investigating complaints\n\nregarding the tax-preparation services of the defendant, Donald Iley, the Colorado\n\nBoard of Accountancy (the “Board”) issued an administrative order—called an\n\n“Agreement and Final Agency Order” (the “Order”), R., Vol. I, at 78 (Agreement\n\nand Final Agency Order, dated Jan. 29, 2010)—in which Mr. Iley admitted to\n\nengaging in professionally negligent conduct and agreed to accept certain\n\ndisciplinary sanctions, including a $10,000 fine and a five-year probationary\n\nperiod. Among the acts for which the Board disciplined Mr. Iley was taking a\n\nclient’s money ostensibly to pay the client’s payroll taxes but then failing to\n\npromptly and properly pay those funds to the Internal Revenue Service (“IRS”).\n\nDuring his probationary period, Mr. Iley was required to open his practice to\n\nmonitoring by a third-party accountant, to complete eighty hours of continuing\n\nprofessional education within two years of the Order’s effective date, and to\n\nsubmit quarterly reports to the Board in which Mr. Iley was obliged to attest to\n\nhis continued compliance with the Order’s terms.\n\n However, while serving the Order’s probationary term, Mr. Iley executed a\n\nfraudulent scheme in which he fleeced his clients of more than $11 million. As\n\npart of this scheme, Mr. Iley fraudulently misrepresented to his clients that he was\n\n 2\n\ntaking their funds to pay outstanding payroll taxes to the IRS but, instead, Mr.\n\nIley used those funds for personal purposes. After this fraud was discovered, Mr.\n\nIley pleaded guilty to wire fraud and aiding in the preparation of a false tax\n\nreturn. At sentencing, the district court enhanced Mr. Iley’s sentence under\n\n§ 2B1.1(b)(9)(C). The question before us is whether the court erred in doing so.\n\nWe hold that, under the particular circumstances of this case, the court did not\n\nerr. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.\n\n§ 3742(a), we affirm.\n\n I\n\n Donald Iley was an accountant. Until 2015, he was licensed by the Board\n\nand owned and operated an accounting firm, Iley & Associates, Inc. Among other\n\nservices, Mr. Iley calculated clients’ payroll taxes, prepared the necessary tax\n\nforms, collected money from clients to pay these taxes, and then sent the money\n\nand the accompanying forms to the IRS.\n\n Not all of Mr. Iley’s clients were satisfied with his services. After\n\nreceiving multiple complaints about his tax-preparation practices, the Board\n\nlaunched an investigation. Mr. Iley had notice of the investigation, and he\n\nresponded to the allegations made against him. After conducting meetings on the\n\nmatter, the Board “found reasonable grounds to refer [Mr. Iley and his business]\n\nto [a] hearing for license law violations.” R., Vol. I, at 79. However, in 2010,\n\n\n\n 3\n\nMr. Iley and the Board ultimately reached an agreement to resolve the matter.\n\nTheir agreement was memorialized in the aforementioned Order.\n\n In that Order, Mr. Iley admitted to certain acts of professional negligence,\n\ngave up his right to a hearing regarding the complaints, and agreed to the Board’s\n\nimposition of certain discipline. Among other things, Mr. Iley admitted in the\n\nOrder that he took a client’s money ostensibly to pay that client’s payroll taxes to\n\nthe IRS but “failed to properly and promptly remit payment in full to the IRS.”\n\nId. at 88. As for the discipline, the Board sanctioned Mr. Iley by requiring him to\n\npay a fine of $10,000 and to submit to a five-year period of probation. During\n\nthis probationary period, Mr. Iley was obliged to open his practice to monitoring\n\nby a third-party accountant to “improve the quality and accuracy of [his] tax\n\nservices and to determine whether [Mr. Iley] meets the generally accepted\n\nprofessional standards for tax services,” including adherence to the Board’s\n\nethical rules. Id. at 93. Mr. Iley also was required to complete eighty hours of\n\ncontinuing professional education within two years of the Order’s effective date.\n\nAnd, lastly, Mr. Iley was required to submit quarterly reports to the Board\n\nattesting to his “compliance with this Order.” Id. at 95. The Order expressly\n\nwarned Mr. Iley that “[a]ny violation of this Order may result in grounds for\n\ndiscipline.” Id. at 98.\n\n However, for a year before the Board issued the Order and for\n\napproximately five years afterwards, Mr. Iley was engaged in a fraudulent scheme\n\n 4\n\nto steal money from his clients. As part of this scheme, Mr. Iley would prepare\n\nan accurate form reflecting the payroll taxes a client owed, submit the form for\n\nthe client’s approval, and then withdraw money from the client’s accounts under\n\nthe guise of paying the tax. But Mr. Iley would not send the money to the IRS;\n\ninstead, he would keep the money for his own personal purposes—including\n\nmaking “payments on his mortgage and his wife’s credit card bill.” Id. at 7\n\n(Indictment, filed Aug. 24, 2016). To complete the scheme, Mr. Iley would send\n\nthe IRS a phony form, wrongly showing that the client owed no payroll taxes.\n\nThere is no indication in the record that the Board was aware of the fraudulent\n\nnature of Mr. Iley’s misdeeds when it issued the Order in 2010.\n\n As authorized by the Order, Mr. Iley requested early termination of the\n\npractice monitoring in 2013. As support for his request, Mr. Iley represented to\n\nthe Board that he had “learned a great deal from this process, including” the need\n\nfor “absolute candor with clients.” Id. at 25 n.3 (Plea Agreement, filed Apr. 18,\n\n2017). But his actions revealed that Mr. Iley was not being truthful with the\n\nBoard. Yet, oblivious to Mr. Iley’s ongoing fraud, the Board granted Mr. Iley’s\n\nrequest. However, the Board later became aware that Mr. Iley (among other\n\nthings) was still “failing to remit taxes on behalf of clients to the United States\n\nTreasury,” and it suspended his license in December 2015 and “permanently\n\nrevoked” it in August 2016. Id., Vol. II, ¶ 36 (Presentence Investigation Report\n\n(“PSR”), filed July 7, 2017).\n\n 5\n\n In late 2015, with some of Mr. Iley’s clients now wise to his fraudulent\n\nconduct and law enforcement directing their investigative resources at him, Mr.\n\nIley ended his fraudulent scheme. All told, Mr. Iley defrauded his clients of more\n\nthan $11 million. More than 140 of his clients were identified as victims of the\n\nscheme. Many of them ended up owing the IRS interest and penalties because\n\nMr. Iley failed to honor his promises to forward their funds to the IRS to pay their\n\npayroll-tax liabilities. And some of his clients were small businesses that were\n\n“ruin[ed]” “financially” by his fraudulent scheme. Id., Vol. V, at 75 (Tr. of\n\nSentencing Hr’g, dated July 13, 2017).\n\n In August 2016, a federal grand jury returned an indictment against Mr.\n\nIley charging him with twelve counts of wire fraud, 18 U.S.C. § 1343, two counts\n\nof mail fraud, 18 U.S.C. § 1341, and eighteen counts of aiding in the preparation\n\nof false tax returns, 26 U.S.C. § 7206(2). Some months later, Mr. Iley pleaded\n\nguilty to one count of wire fraud and one count of aiding in the preparation of a\n\nfalse tax return, in exchange for the government agreeing, inter alia, to dismiss\n\nthe remaining charges.\n\n The U.S. Probation Office prepared a PSR and computed Mr. Iley’s\n\nadvisory Guidelines sentencing range as ninety-seven to 121 months’\n\nimprisonment. 1 The PSR arrived at that range by using a total adjusted offense\n\n\n 1\n The Probation Office used the 2016 edition of the Guidelines in\n (continued...)\n\n 6\n\nlevel of thirty, which included a two-level enhancement under § 2B1.1(b)(9)(C)\n\nfor Mr. Iley’s alleged violation of the Order. Without this “Prior Order”\n\nenhancement, 2 Mr. Iley would have faced an advisory Guidelines sentencing\n\nrange of seventy-eight to ninety-seven months’ imprisonment.\n\n Mr. Iley objected to the PSR’s application of the § 2B1.1(b)(9)(C)\n\nenhancement. As he saw it, his fraud conviction was unrelated to the conduct for\n\nwhich the Order had punished him—namely, professional negligence. Thus, as\n\nMr. Iley reasoned, his later fraud did not violate the Order, meaning that\n\n§ 2B1.1(b)(9)(C) did not apply.\n\n\n\n\n 1\n (...continued)\ncalculating Mr. Iley’s sentence. This decision is not challenged on appeal.\nTherefore, in resolving this appeal, we also rely on the 2016 edition.\n 2\n From 2004 to 2010, the language currently found in § 2B1.1(b)(9)(C)\nappeared in § 2B1.1(b)(8)(C). From 2001 to 2003, this language was housed in\n§ 2B1.1(b)(7)(C). Before that, the enhancement was governed by somewhat\ndifferent language (although, as we discuss infra, the differences are immaterial\nin this case) and appeared elsewhere in the Guidelines. See United States v.\nPentrack, 428 F.3d 986, 989 (10th Cir. 2005) (citing U.S.S.G. § 2F1.1(b)(4)(B)\n(Nov. 1999)). Because the language has not changed in respects material to this\ncase with these re-codifications, we consider judicial decisions interpreting prior\nversions of the enhancement as directly applicable to our resolution of Mr. Iley’s\nchallenge under § 2B1.1(b)(9)(C). Moreover, to minimize any possible confusion\nrelated to these immaterial changes, this opinion generally elides in its analysis\nthe prior section numbers and (except where necessary) changes in the\nenhancement’s text. Not infrequently, it simply refers to the enhancement as the\n“Prior Order” enhancement, without reference to which version of the\nenhancement was effective at the time of a particular judicial decision.\n\n 7\n\n The Probation Office saw things differently. It noted that the Order put Mr.\n\nIley on probation and part of that probation entailed “not engaging in more\n\nfraudulent activity.” R., Vol. II, at 226 (Addendum to the PSR, dated July 7,\n\n2017). Yet, as the Probation Office explained, Mr. Iley “continued his fraudulent\n\nactivity.” Id. And so the Probation Office reasoned that Mr. Iley had violated the\n\nOrder and was thus eligible for the § 2B1.1(b)(9)(C) enhancement.\n\n At sentencing, the district court agreed with the Probation Office. It read\n\nthe Order as telling “Mr. Iley that he needed to stop engaging in . . . . further\n\nfraudulent activity.” Id., Vol. V, at 49–50. The court stated that, despite that\n\nwarning, Mr. Iley was “actively defrauding” his clients while on probation and\n\nthereby violating the Order. Id. at 49. For that reason, the court found that the\n\n§ 2B1.1(b)(9)(C) enhancement applied to Mr. Iley.\n\n Mr. Iley now appeals, challenging the district court’s imposition of the two-\n\nlevel enhancement under § 2B1.1(b)(9)(C).\n\n II\n\n The overarching question of whether a district court correctly computed a\n\ndefendant’s Guidelines sentencing range—and, more specifically, whether it\n\ncorrectly imposed a particular Guidelines enhancement—is a question of\n\nprocedural reasonableness. See, e.g., United States v. Huckins, 529 F.3d 1312,\n\n1317 (10th Cir. 2008) (noting that “[p]rocedural reasonableness addresses [inter\n\nalia] whether the district court incorrectly calculated . . . the Guidelines\n\n 8\n\nsentence”); accord United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th\n\nCir. 2008). However, in assessing whether the district court’s computation is\n\ncorrect “we review legal questions regarding the application of the Sentencing\n\nGuidelines de novo,” and “a district court’s factual findings are reviewed only for\n\nclear error, giving due deference to the district court’s application of the\n\nGuidelines to the facts.” United States v. Pentrack, 428 F.3d 986, 989 (10th Cir.\n\n2005); see also United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per\n\ncuriam) (“We note that this new standard of review—that of\n\n‘reasonableness’—does not displace the oft-cited principle that in considering the\n\ndistrict court’s application of the Guidelines, we review factual findings for clear\n\nerror and legal determinations de novo.”).\n\n We do not appear to have addressed in direct and express terms whether we\n\nshould assess de novo whether a particular “prior, specific judicial or\n\nadministrative order, injunction, decree, or process” provides a sufficient basis for\n\nthe imposition of the Prior Order enhancement. 3 U.S.S.G. § 2B1.1(b)(9)(C).\n\n\n 3\n In two precedential decisions, we appear to have tacitly conducted\nsuch an assessment de novo. We seemingly did so in Pentrack when “[t]urning to\nthe factual background” of that case—that is, when focusing on whether the\nmessage conveyed by the “consent judgment and stipulation” at issue was\nadequately specific regarding “the type of conduct prohibited.” 428 F.3d at 988,\n990. In this connection, it is notable that in Pentrack we did not purport to defer\nin any way to the district court’s interpretation of the judgment and stipulation;\nwe simply concluded based on an independent analysis that it “was designed to\nprohibit prior misconduct of the very same nature as his federal crimes” and\n (continued...)\n\n 9\n\nAnd, as it turns out, we need not definitively resolve this standard-of-review\n\nquestion here. That is because the parties present no genuine controversy\n\nregarding it. See, e.g., People for the Ethical Treatment of Property Owners v.\n\nU.S. Fish and Wildlife Serv., 852 F.3d 990, 1008 (10th Cir. 2017) (“[I]f it is not\n\nnecessary to decide more, it is necessary not to decide more.” (alteration in\n\noriginal) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)\n\n(Roberts, J., concurring in part and concurring in the judgment))), cert. denied,\n\n138 S. Ct. 649 (2018); Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd.,\n\n 3\n (...continued)\noffered “specific notice as to prohibited conduct.” Id. at 990–91. With less\nexposition, we appear to have followed a similar path in United States v.\nFlanders, 491 F.3d 1197 (10th Cir. 2007). There, we arguably reviewed a prior\nadministrative order de novo in addressing “[t]he extent to which the [order]\nrestricted Defendant’s [subsequent] conduct” regarding certain matters discussed\nin the order. Id. at 1219. So interpreted, our prior precedent would be congruent\nwith at least some of our sister circuits that have directly and expressly addressed\nthis question. See United States v. Nash, 729 F.3d 400, 403 (5th Cir. 2013) (“A\ndetermination that a particular judicial or administrative action qualifies under\nSection 2B1.1(b)(9)(C) is an interpretation and application of the guidelines that\nwe review de novo.”); United States v. Mantas, 274 F.3d 1127, 1132 (7th Cir.\n2001) (“We review de novo the district court’s imposition of a 2–offense–level\nsentence enhancement for violation of official process under [the Prior Order\nenhancement].”). And application of a de novo standard of review also would\nseemingly be consistent with the approach generally taken in reviewing similar\nwritten instruments in other contexts. See Joseph A. ex rel. Wolfe v. Ingram, 275\nF.3d 1253, 1266 (10th Cir. 2002) (“We construe the terms of a consent decree de\nnovo using traditional principles of contract interpretation.”); see also Schering\nCorp. v. Ill. Antibiotics Co., 62 F.3d 903, 908 (7th Cir. 1995) (“The interpretation\nof documents, including judicial decrees, is . . . traditionally an issue of law and\none on which, moreover, appellate review is plenary.”). However, as noted infra,\nwe ultimately exercise restraint and leave the definitive resolution of this\nstandard-of-review issue to another day.\n\n 10\n\n616 F.3d 1086, 1094 (10th Cir. 2010) (“Judicial restraint, after all, usually means\n\nanswering only the questions we must, not those we can.”). Specifically, the\n\nparties agree that de novo review governs this question. Compare Aplt.’s\n\nOpening Br. at 8 (asserting, without citation to controlling Tenth Circuit\n\nauthority, that “[d]e novo review also governs the district court’s interpretation of\n\nthe administrative order that Mr. Iley allegedly violated”), with Aplee.’s Resp. Br.\n\nat 7 (adopting the de novo approach of the Fifth Circuit). Thus, we are content to\n\napply de novo review in assessing whether the Order provides a sufficient basis\n\nfor the imposition of the Prior Order enhancement.\n\n III\n\n This case turns on whether Mr. Iley’s fraudulent conduct violated the\n\nOrder. 4 Mr. Iley claims that it did not for two reasons. First, in his view,\n\n§ 2B1.1(b)(9)(C) applies only when a defendant does something that an “agency\n\nhad expressly forbidden him from [doing].” Aplt.’s Opening Br. at 7. And\n\nbecause the Order did not expressly enjoin Mr. Iley from committing the same or\n\nsimilar fraudulent conduct for which he ultimately was convicted, Mr. Iley\n\ncontends that he did not violate the Order. See id. at 6 (“[T]he administrative\n\norder clearly delineates the conditions of Mr. Iley’s probation, and none of those\n\nconditions includes an order not to commit fraud.”). Second, Mr. Iley argues that\n\n 4\n The parties do not contest that the Order qualifies as a prior\n“administrative order” under § 2B1.1(b)(9)(C).\n\n 11\n\nthe Order punished him for negligence, not fraud. Hence, Mr. Iley reasons that\n\nhis fraudulent conduct did not violate the Order because negligence and fraud are\n\ndifferent. For either or both reasons, he contends that the district court erred in\n\napplying the § 2B1.1(b)(9)(C) enhancement. 5\n\n 5\n Some of our sister circuits have held in the context of administrative\norders that “imposing the two-level [Prior Order] enhancement requires an\ninteraction between the agency and defendant that allowed the defendant to\nparticipate in some meaningful way (if he elected to do so).” United States v.\nGoldberg, 538 F.3d 280, 291 (3d Cir. 2008); see Nash, 729 F.3d at 405 (“[T]he\ndistrict court correctly found that Nash’s prior violation of [the government\nprogram at issue] and his acknowledgment of the violation satisfied the\nrequirement that there be ‘interaction’ between the agency and the defendant.”\n(quoting Goldberg, 538 F.3d at 291–92 & n.7)); see also United States v. Linville,\n10 F.3d 630, 632 (9th Cir. 1993) (“The Commentary and Background to [the Prior\nOrder enhancement] indicate that it was meant to apply where a defendant\nviolated a previously-issued judicial or administrative order which resulted from a\nformal adversary proceeding; Linville neither had the benefit of an adversary\nproceeding to establish the statutory violations she is accused of in the\n[government agency’s] warnings, nor was she issued a formal order compelling\nstatutory compliance.”); Thomas W. Hutchison, et al., F EDERAL S ENTENCING L AW\n& P RACTICE § 2B1.1, Westlaw (database updated Jan. 2019) (“Because\nadministrative agency procedures are less formal than judicial procedures, the\ncircuits consider the process of the issuance of what is said to constitute an\nadministrative order when determining the applicability of the enhancement.”).\n\n We do not appear to have addressed in a precedential decision whether the\napplication of the Prior Order enhancement hinges to any degree on a so-called\n“interaction” requirement. And we have no occasion to opine on the matter here\nbecause Mr. Iley does not attack the district court’s imposition of the\nenhancement on the ground that the Board’s Order was not the product of\nsufficient “interaction.” Perhaps this is not surprising because the Order—by its\nplain terms—evinces that Mr. Iley was “notified” of the complaints against him;\nwas “given the opportunity to provide the Board with written data, views, and\narguments concerning the complaints”; and negotiated an agreement with the\nBoard, memorialized in the Order, “[i]n order to avoid the uncertainty of\n (continued...)\n\n 12\n\n The government disagrees. It says that Mr. Iley’s first argument “elevates\n\nform over substance.” Aplee.’s Resp. Br. at 11. In the government’s view,\n\n“[a]lthough the Order did not explicitly enjoin [Mr.] Iley from” committing the\n\nfraudulent conduct underlying his conviction, “that was the unmistakable\n\nimplication of the Order.” Id. at 10. Thus, the government reasons that, by\n\nengaging in fraudulent conduct while the Order was in effect, Mr. Iley violated\n\nthe Order. As for Mr. Iley’s second argument, the government asserts that it is\n\nirrelevant that the Order disciplined Mr. Iley for negligent conduct, whereas he\n\nwas subsequently convicted of fraudulent acts, because “by punishing even\n\nnegligent conduct, the Order necessarily prohibited [Mr.] Iley from engaging in\n\nthe same conduct fraudulently as well.” Id. at 14. Thus, the government argues\n\nthat the district court properly applied the § 2B1.1(b)(9)(C) enhancement.\n\n In sum, the parties disagree on two points. First, whether § 2B1.1(b)(9)(C)\n\napplies even though the Order did not expressly enjoin Mr. Iley from committing\n\nthe same or similar fraudulent conduct for which he ultimately was convicted.\n\nAnd, second, whether the fact that the Order imposed discipline on Mr. Iley for\n\nnegligent conduct meant that Mr. Iley’s subsequent commission of the same or\n\nsimilar conduct fraudulently was not in contravention of the Order.\n\n 5\n (...continued)\nlitigation and to bring this matter to a conclusion.” R., Vol. I, at 79. Indeed, Mr.\nIley asserts that the Order “was effectively a consent decree.” Aplt.’s Opening\nBr. at 8.\n\n 13\n\n A\n\n As to the first question, having carefully considered our caselaw, the plain\n\nterms of § 2B1.1(b)(9)(C) and its commentary, and relevant authorities of our\n\nsister circuits, we conclude that, at least under the specific circumstances of this\n\ncase, § 2B1.1(b)(9)(C) applies even though the Order did not expressly enjoin Mr.\n\nIley from defrauding his clients. In particular, we conclude that § 2B1.1(b)(9)(C)\n\nmay apply without an explicit injunction when, as here, the prior order (1)\n\nimposed a concrete punishment, such as a fine, on the defendant for the same or\n\nsimilar conduct at issue in the defendant’s subsequent offense; (2) imposed\n\nprospective, remedial conditions or obligations, like practice monitoring and the\n\nfiling of quarterly reports—through a probationary term or otherwise—that were\n\nreasonably calculated to curtail future instances of the conduct at issue; and (3)\n\nnevertheless the defendant perpetrated that prohibited conduct while the order\n\nwas still in effect.\n\n Importantly, we find persuasive support for our holding in our own\n\nprecedent, specifically Pentrack. There, Mr. Pentrack and a state agency entered\n\ninto a consent order. The order punished Mr. Pentrack for deceiving customers\n\nand enjoined him from, inter alia, making future “false, deceptive, or misleading\n\nstatements.” 428 F.3d at 988. Some years later, Mr. Pentrack was convicted of\n\ndefrauding customers. After the district court enhanced his sentence under the\n\n\n 14\n\nPrior Order enhancement, Mr. Pentrack argued on appeal that the earlier order\n\nwas not “specific” enough because “it merely obligated him to do what he had\n\nalways been required to do, namely obey the law.” Id. at 989.\n\n In rejecting that argument, we undertook an informative examination of the\n\nhistory of the enhancement and its commentary. 6 We did so because, though the\n\nenhancement requires the violation to be of a “specific” injunction—and in legal\n\nparlance that would mean the order “must be explicit”—the Prior Order\n\nenhancement’s plain terms offered “little insight into exactly how the injunction\n\nmust satisfy” the explicitness standard. Id. We noted that the Sentencing\n\nCommission inserted in 2000 the “prior, specific” language into what is in\n\nmaterial respects the current text of the Guideline, 7 but notably we did not\n\nconclude that the Commission did so to create a heightened standard of specificity\n\nfor injunctions falling within the ambit of the enhancement. In other words, we\n\n\n\n 6\n Pentrack expressly recognized that “[w]e interpret the Sentencing\nGuidelines by following ordinary rules of statutory construction.” 428 F.3d at\n989. Further, it is well settled that the commentary of the Guidelines is “binding\nand authoritative” unless it “violates the Constitution or a federal statute” or\nadopts “a plainly erroneous reading of[] [a] guideline.” United States v. Miller,\n868 F.3d 1182, 1188 (10th Cir. 2017) (quoting United States v. Morris, 562 F.3d\n1131, 1135 (10th Cir. 2009)), cert. denied, 138 S. Ct. 2622 (2018). We adhere to\nthese principles throughout our analysis here.\n 7\n As we stated, “Before 2000, a defendant’s offense level was\nenhanced if [the offense] involved a ‘violation of any judicial or administrative\norder, injunction, decree, or process not addressed elsewhere in the guidelines.’”\nPentrack, 428 F.3d at 989 (quoting U.S.S.G. § 2F1.1(b)(4)(B) (Nov. 1999)).\n\n 15\n\ndid not conclude that the Commission sought to ensure, by its word changes, that\n\ndefendants would be subject to the enhancement only for violating express\n\ncommands not to engage in certain conduct. See id. at 990.\n\n Instead, examining the Commission’s explanation for the insertion of the\n\nlanguage, we noted the following: “The additional phrasing, then, merely clarifies\n\nthe distinction between enhancements for bankruptcy and non-bankruptcy fraud,\n\neffectively leaving unaltered the application of the enhancement in\n\nnon-bankruptcy proceedings.” Id. (emphasis added). Under this unaltered\n\napplication, the prior injunction need not have explicitly proscribed a defendant’s\n\nsubsequent offense conduct; rather, for purposes of the enhancement’s\n\napplication, we concluded that the injunction was sufficient, so long as it was\n\n“specific enough to provide the defendant with adequate notice of the prohibited\n\nconduct.” Id.\n\n We concluded that the order in Pentrack did just that. More specifically,\n\n“the order was designed to prohibit prior misconduct of the very same nature as\n\n[the defendant’s] federal crimes (deception of consumers) and gives specific\n\nnotice as to prohibited conduct”; therefore, we concluded that the order\n\n“satisfie[d] the requirements” of the Prior Order enhancement. Id. at 990–91.\n\nGiven the adequate notice provided by the order, we thought Mr. Pentrack could\n\n“hardly complain that he did not know what past conduct was being enjoined or\n\n\n 16\n\nwhat future conduct would violate [the order’s] terms.” Id. at 991 n.3. For those\n\nreasons, we held that the district court did not err in enhancing Mr. Pentrack’s\n\nsentence.\n\n Pentrack suggests that an express injunction is not always necessary under\n\n§ 2B1.1(b)(9)(C). Pentrack’s analysis of the enhancement’s history and the\n\nSentencing Commission’s insertion of the phrase “prior, specific” indicates that\n\nthose words were not aimed at creating a heightened standard of specificity for\n\ninjunctions properly falling within the ambit of the enhancement. That is, the\n\nCommission was not seeking to ensure that defendants would be subject to the\n\nenhancement only if they violated express commands not to engage in certain\n\nconduct. Rather, we concluded that it is sufficient “if the injunction is specific\n\nenough to provide the defendant with adequate notice of the prohibited conduct.”\n\nId. at 990.\n\n It is noteworthy, moreover, that in determining that the order was indeed\n\nspecific enough in Pentrack, we did not parse its terms but rather focused on\n\nwhether, overall, “the order was designed to prohibit prior misconduct of the very\n\nsame nature as [Mr. Pentrack’s] federal crimes,” and whether the order\n\n“provide[d] [him] with adequate notice of the prohibited conduct”—that is, of\n\n“what future conduct would violate [the order’s] terms.” Id. at 990–991 & n.3.\n\nViewed in totality, Pentrack’s reasoning thus strongly suggests that a prior order\n\n\n 17\n\nthat was reasonably calculated to prohibit certain conduct need not include terms\n\nthat expressly enjoin the future occurrence of that conduct. Rather, it is sufficient\n\nif that order gave the defendant adequate notice of the prohibited conduct and, in\n\nthe words of the Guidelines commentary, the defendant’s subsequent offense\n\nconduct is “the same or similar” as the conduct that the order prohibited.\n\nU.S.S.G. § 2B1.1(b)(9)(C) cmt. background; see Pentrack, 428 F.3d at 990–991.\n\n Viewed in this light, Pentrack points toward our ultimate conclusion that\n\nthe district court did not err in applying § 2B1.1(b)(9)(C) to Mr. Iley, even though\n\nthe Order lacked an explicit injunction against the commission of the fraudulent\n\nacts that were the subject of Mr. Iley’s subsequent offense. As in Pentrack, the\n\nOrder was reasonably calculated to prohibit conduct that was the same as or\n\nsimilar to Mr. Iley’s subsequent offense conduct. Recall that the Order\n\nspecifically identified the conduct: “Despite taking possession of sufficient funds\n\nto pay the taxes due, Respondent Iley failed to properly and promptly remit\n\npayment in full to the IRS . . . .” R., Vol. I, at 88. Subsequently, Mr. Iley was\n\nindicted, inter alia, for similar conduct, i.e., taking client funds that were made\n\navailable to pay taxes, failing to remit those funds to the IRS, and instead “us[ing]\n\nthese monies for other purposes, including paying personal expenses such as\n\npayments on his mortgage and his wife’s credit card bill.” Id. at 7. To prohibit\n\n\n\n\n 18\n\nthis conduct, the Order imposed on Mr. Iley a substantial fine of $10,000 and a\n\nprobationary term during which he was required to abide by certain conditions.\n\n Notably, to “improve the quality and accuracy of [his] tax services” and “to\n\ndetermine whether [he] meets the generally accepted professional standards for\n\ntax services,” including adhering to the Board’s ethical rules, the Order required\n\nMr. Iley to submit to monitoring of his practice by a third-party accountant. Id. at\n\n93. Furthermore, under the Order, Mr. Iley was obliged to submit quarterly\n\nreports to the Board in which, among other things, he was required to attest that\n\nhe was “in compliance with” the Order—that is, the same Order that condemned\n\nhis conduct of taking and not remitting client money. Id. at 95. At a minimum,\n\nthen, the Order’s monetary fine and forward-looking remedial obligations evince\n\nthat the parties to the Order contemplated that, while on probation, Mr. Iley\n\nwould cease the conduct that had given rise to the Order—even without an\n\nexplicit injunction mandating that he do so. In other words, the Order was\n\nreasonably calculated to prohibit conduct that was the same as or similar to Mr.\n\nIley’s subsequent offense conduct. But Mr. Iley did not stop the conduct.\n\n\n\n Furthermore, as in Pentrack, the Order clearly provided Mr. Iley “with\n\nadequate notice” that this conduct was “prohibited.” 428 F.3d at 990. Like Mr.\n\nPentrack, Mr. Iley could “hardly complain that he did not know” that his later\n\n\n 19\n\nfraud contravened the substance of the Order. Id. at 991 n.3. Simply put, Mr.\n\nIley knew the Order prohibited the same or similar conduct comprising his\n\nfraudulent scheme but he kept engaging in that conduct anyway, and, as a\n\nconsequence, his clients were defrauded. Thus, given the Order’s notice and Mr.\n\nIley’s subsequent conduct evidencing defiance of the Order, Pentrack is\n\npersuasive support for the conclusion that the district court properly\n\ndetermined—even without an express injunction—that Mr. Iley’s conduct\n\n“satisfies the requirements of § 2B1.1(b)([9])(C).” Id. at 991.\n\n To be sure, as Mr. Iley is quick to point out, the order in Pentrack differs\n\nfrom the Order here because it “specifically enjoined fraud.” Aplt.’s Opening Br.\n\nat 12. As such, though Pentrack’s reasoning is quite persuasive and illuminating,\n\nwe freely acknowledge that, standing alone, Pentrack does not directly control\n\nour holding here. In short, standing alone, Pentrack is not dispositive. However,\n\nPentrack does not stand alone. Our holding—which is grounded in the specific\n\ncircumstances of Mr. Iley’s case—finds further support in the decisions of our\n\nsister circuits.\n\n In the Fifth Circuit’s decision in United States v. Nash, 729 F.3d 400 (5th\n\nCir. 2013), for example, an agency determined that Mr. Nash improperly accepted\n\nfood stamps for unapproved items. The agency then imposed a fine and sent Mr.\n\nNash a warning letter—a letter that the court consistently referred to as the “July\n\n\n 20\n\n9 letter.” See, e.g., id. at 405. That letter “warned that failure to pay the fine\n\nwould result in a six-month disqualification from” the food-stamp program and\n\n“made clear that imposition of the fine did not preclude further action in response\n\nto [Mr.] Nash’s violations.” Id. at 405, 406. Mr. “Nash acknowledged the\n\nviolation and agreed to pay the fine.” Id. at 402. But he nevertheless continued\n\nto accept food stamps for unauthorized items. Mr. Nash was ultimately indicted\n\nand convicted of a criminal offense stemming from his food-stamp fraud. The\n\ndistrict court applied the § 2B1.1(b)(9)(C) enhancement in sentencing Mr. Nash,\n\nand he challenged this ruling on appeal.\n\n At the outset, the Fifth Circuit defined Mr. Nash’s challenge and its\n\ndisposition: “We understand [Mr. Nash] to argue that because the July 9 letter did\n\nnot expressly enjoin him from committing food stamp fraud in the future, he\n\ncannot now be found to have violated the [agency’s] order. We find [Mr.] Nash’s\n\nargument to be without merit.” Id. at 404. Focusing on the substance of\n\n§ 2B1.1(b)(9)(C), 8 the Fifth Circuit concluded that the “application of the\n\nenhancement ‘requires some specific directive that the defendant can defy.’” Id.\n\n\n 8\n Though Nash conceded that the warning letter was “somewhat short\nof [§ 2B1.1(b)(9)(C)’s] literal terms” because it was not a “prior, specific judicial\nadministrative order, injunction, decree or process,” Nash ruled that the letter\nsatisfied the substance of the enhancement. See 729 F.3d at 405 (emphasis added)\n(quoting U.S.S.G. § 2B1.1(b)(9)(C)). No such concession is necessary here, of\ncourse; it is undisputed that the Order qualifies as a prior “administrative order”\nunder § 2B1.1(b)(9)(C). See supra note 4.\n\n 21\n\nat 405 (quoting United States v. Goldberg, 538 F.3d 280, 292 (3d Cir. 2008)).\n\nAnd the July 9 letter was such a directive because it effectively warned Mr. Nash\n\n“that continuation of his fraudulent conduct was illegal.” Id. at 406. The court\n\nopined that, while “‘no court of appeals has held that a mere warning letter,\n\nwithout more, can justify the enhancement,’ the fine (itself the result of a\n\nproceeding in which [Mr.] Nash participated) clearly ‘ordered [Mr. Nash] to stop’\n\ncommitting food stamp fraud.” Id. (quoting Goldberg, 538 F.3d at 291–92). And,\n\nbecause Mr. Nash defied this order to stop, the Fifth Circuit concluded that Mr.\n\nNash was “exactly the type of defendant the enhancement was intended to apply\n\nto”—that is, “one ‘who has . . . demonstrate[d] aggravated criminal intent.’” Id.\n\n(second alteration in original) (quoting § 2B1.1(b)(9)(C) cmt. background).\n\nThus, the Nash court held that § 2B1.1(b)(9)(C) applied even though the July 9\n\nletter did not expressly enjoin Mr. Nash from committing the specific fraudulent\n\nconduct for which he later was criminally prosecuted.\n\n It is patent that Nash bolsters the ultimate conclusion that we reach here.\n\nLike in Nash, Mr. Iley’s contention that the enhancement does not apply because\n\nthe Order did not explicitly enjoin him from engaging in the fraudulent conduct\n\nunderlying his offense is “without merit.” Id. at 404. Analogous to Nash, Mr.\n\nIley was warned, in substance, through the Order “that continuation of his\n\nfraudulent conduct” was prohibited. Id. at 406. Specifically, the Order identified\n\n\n 22\n\nthe acts of Mr. Iley that it sought to prohibit, including “taking possession of\n\nsufficient [client] funds to pay the taxes due” and then not “properly and\n\npromptly” paying those funds to the IRS. R., Vol. I, at 88. These were the same\n\nbasic acts underlying Mr. Iley’s fraudulent scheme. And, partly because of these\n\nacts, the Order fined Mr. Iley and placed him on probation, during which Mr. Iley\n\nwas required to abide by certain conditions. Those conditions included practice\n\nmonitoring and the requirement that he attest quarterly that he was “in compliance\n\nwith” the Order—that is, an Order that condemned his conduct of taking and not\n\nremitting client money. Id. at 95. We are able quite naturally to read the Order’s\n\nsanctions, including its monetary fine and forward-looking remedial obligations,\n\nas a firm and concrete warning to Mr. Iley to stop the conduct that had given rise\n\nto the Order. Further, as in Nash, the Order’s sanctions here—viewed in\n\ntotality—constituted a “specific directive that the defendant can defy.” Nash, 729\n\nF.3d at 405 (quoting Goldberg, 538 F.3d at 292). And, by continuing to engage\n\nin the kind of acts that the Order identified as worthy of sanction, Mr. Iley\n\ncertainly did defy the Order’s directive. Thus, as in Nash, Mr. Iley’s subsequent\n\nfraudulent conduct made “him exactly the type of defendant the enhancement was\n\nintended to apply to.” Id. at 406.\n\n Nash distinguished circuit cases holding that a mere warning letter, without\n\nmore, was insufficient to justify application of the enhancement. Id. It noted that\n\n\n 23\n\nmore was present in Nash; “the fine (itself the result of a proceeding in which\n\n[Mr.] Nash participated) clearly ‘ordered [Mr. Nash] to stop’ committing food\n\nstamp fraud.” Id. (quoting Goldberg, 538 F.3d at 291–92). 9 Like Nash, we also\n\n 9\n As the Third Circuit recognized in Goldberg, one of those mere-\nwarning cases is the Seventh Circuit’s decision in United States v. Wallace, 355\nF.3d 1095 (7th Cir. 2004). See Goldberg, 538 F.3d at 291. In Wallace, the\nSeventh Circuit reversed the district court’s imposition of the Prior Order\nenhancement “where [the defendant] was told that his behavior was unlawful” and\n“[a]t this time he signed a ‘Statement of Voluntary Discontinuance’ prepared by\nthe [agency], which was basically a promise by [the defendant] that he would not\nengage in similar fraudulent behavior in the future.” 355 F.3d at 1096. The\nWallace court concluded that the Statement and surrounding circumstances were\ninsufficiently specific and concrete to justify application of the Prior Order\nenhancement. See id. at 1098 (unfavorably comparing this warning scenario to a\nsituation where a defendant is under, inter alia, a consent decree); see Goldberg,\n538 F.3d at 291 (deeming agency action insufficient to warrant application of the\nPrior Order enhancement where it does not lead “to a definite result, like a\nconsent decree or seizure”); Linville, 10 F.3d at 633 (noting that “the Sentencing\nCommission did not intend to subject every recipient of relatively informal\nmissives and official notifications and warnings of violations from administrative\nagencies to the extra penalties” of the enhancement, which were “designed for\npeople” with more culpable intent). Wallace offered a helpful illustration:\n\n To paint a clearer picture, we see [the defendant’s] situation more\n resembling that of a driver receiving a warning from a police\n officer after being caught speeding. In this situation, like [the\n defendant], the driver knows she has violated a traffic law, she\n knows that if she speeds in the future she will be violating the\n law, and our driver will most likely have agreed to the officer’s\n request that she “slow it down” and not violate the posted speed\n limits in the future. In cases of these informal warnings, the\n driver cannot be doubly fined the next time she is stopped and\n issued a ticket. The same is true of the [agency’s] actions\n concerning [the defendant]. Without having engaged in\n something more substantial than preparing a “Statement of\n Voluntary Discontinuance”, [sic] we cannot hold that [the\n (continued...)\n\n 24\n\ncan distinguish such cases because there is more here—indeed, there is more here\n\nthan in Nash.\n\n We need not, and thus do not, rely solely on a monetary fine (as in Nash) to\n\ndistinguish such mere-warning cases. To be sure, the Order clearly imposed a\n\nsubstantial fine on Mr. Iley (i.e., $10,000), and it is a significant part of the\n\ncalculus. But we also may rely here on the Order’s imposition of a probationary\n\nterm on Mr. Iley that had prospective, mandatory conditions. Coupled with the\n\nfine, these conditions were reasonably calculated to send the definite and concrete\n\nmessage to Mr. Iley that he should cease the conduct that had given rise to the\n\nOrder—or, as Nash put it, that Mr. Iley should “stop” this conduct. Id. (quoting\n\n 9\n (...continued)\n defendant] is subject to the [Prior Order] sentence enhancement\n ....\n\n355 F.3d at 1098 (emphasis added). As explicated further infra, contrary to\nWallace’s hypothetical, the Board’s negotiations with Mr. Iley led to a “definite\nresult, like a consent decree,” Goldberg, 538 F.3d at 291. Instead of the Board\nsimply informing Mr. Iley of the acts it sought to prohibit and, in effect, giving\nhim a warning in the form of a sanctionless order (like the hypothetical warning\nfor speeding in Wallace), the Board reached a negotiated agreement with Mr.\nIley—memorialized in the Order—that resulted in the imposition of a substantial\nmonetary fine and a probationary term. Together, these sanctions were\nreasonably calculated to send a firm and concrete message to Mr. Iley that he\nshould cease the conduct that had given rise to the Order—viz., Mr. Iley should\n“stop” this conduct. See Nash, 729 F.3d at 406 (quoting Goldberg, 538 F.3d at\n291–92). Cf. Flanders, 491 F.3d at 1219 (holding that where the prior\nmemorandum of understanding governing the defendant’s conduct “only\nrecommended board approval [for a certain asset sale]” and “did not mandate it”\nthe memorandum did not sufficiently “restrict[] Defendant’s conduct” to make his\nsubsequent attempted asset sale a violation of the memorandum).\n\n 25\n\nGoldberg, 538 F.3d at 291–92). Thus, Nash stands with our decision in Pentrack\n\nin supporting the conclusion that we reach here. 10\n\n 10\n Although Mr. Iley’s briefing never mentions the case, we recognize\nthat the Third Circuit professed in Goldberg to embrace “a highly formalistic\ninterpretation” of the Prior Order enhancement, 538 F.3d at 292 n.7, which at\nleast at first blush would appear to be at odds with our Pentrack decision and our\ngeneral approach here toward application of the enhancement. Under that\nformalistic approach, a prior warning would need to include not only a warning\nthat the defendant’s conduct is illegal, but also “the word ‘desist’ on that same\nline to tell him to stop[.]” Id. However, Goldberg’s actual legal analysis seems\nto significantly belie this first impression; that analysis appears to be centered on\nwhether the agency’s action resulted in a “definite result, like a consent decree or\nseizure”—that is, “some specific directive that the defendant can defy.” Id. at\n291–92 (citing United States v. Spencer, 129 F.3d 246, 252 (2d Cir. 1997)\n(holding the enhancement to be warranted in the consent-decree context), and\nMantas, 274 F.3d at 1129–30 (upholding application of the enhancement where\nagency officially seized the defendant’s contaminated and tainted meat by placing\nat tag on a cooler containing it)). The government’s problem in Goldberg was\nthat the agency’s response to the defendant’s wrongful conduct led to no such\ndefinite result. Specifically, the agency simply “twice warned” Mr. Goldberg that\nhe “was violating” the law by distributing certain veterinary pharmaceuticals. Id.\nat 284. Mr. Goldberg, however, kept on distributing them, and he was later\nconvicted of fraud. The district court thought the enhancement applied, but the\nThird Circuit disagreed.\n\n So understood—as Nash also appeared to read it—Goldberg “is not\ncontrary” to our approach here. Nash, 729 F.3d at 406 n.4. Here, the Board’s\nnegotiations with Mr. Iley produced a definite result—that is, an Order that was\neffectively a consent decree, as Mr. Iley admits. See Aplt.’s Opening Br. at 8\n(noting that the Order was “effectively a consent decree”). This Order imposed a\nsubstantial fine on Mr. Iley and placed him on probation. And, under that\nprobation, Mr. Iley was obliged to fulfill certain conditions that were designed to\nensure that he did not repeat the conduct that led the Board to issue the Order in\nthe first place—conduct such as taking his clients’ money for the ostensible\npurpose of paying the IRS to satisfy their tax bills, but then failing to do so. Yet,\nafter the Order issued, Mr. Iley defied it, continuing to take his clients’ money\nwithout—as his clients expected—paying the IRS. In sum, the Order constituted\n (continued...)\n\n 26\n\n We can say the same thing with respect to the Eighth Circuit’s decision in\n\nUnited States v. Jokhoo, 806 F.3d 1137 (8th Cir. 2015). There, a state agency\n\nissued administrative orders that revoked Mr. Jokhoo’s business license and\n\nimposed “civil penalties after a hearing” on him for various fraudulent practices.\n\nId. at 1139. Mr. Jokhoo nevertheless continued the same or similar practices and\n\nwas subsequently indicted and convicted for doing so. At sentencing, the district\n\ncourt enhanced Mr. Jokhoo’s sentence under § 2B1.1(b)(9)(C)—a decision that he\n\nchallenged on appeal. The Eighth Circuit discerned no error in the enhancement,\n\nhowever. Citing Nash, it stated, “[t]he administrative order need not expressly\n\nenjoin proscribed conduct, but must direct a defendant to refrain from such\n\nconduct.” Id. at 1141. The Eighth Circuit reasoned that, like the fine in Nash, the\n\nagency’s “sanctions ‘clearly ordered’ [Mr.] Jokhoo to stop committing fraud, but\n\nthe record shows that [he] continued to do so.” Id. (quoting Nash, 729 F.3d at\n\n406). And so the Eighth Circuit in Jokhoo held that “[t]he district court . . . did\n\nnot err in applying the enhancement.” Id.\n\n 10\n (...continued)\nthe “definite result, like a consent decree,” that the Third Circuit found to be\nmissing in Goldberg. 538 F.3d at 291. And, consistent with Goldberg’s\nreasoning, the Order’s fine and probationary conditions were tantamount to a\n“specific directive” that Mr. Iley could—and did—“defy.” Id. at 292. Thus, our\ncareful consideration of its actual legal analysis leads us to conclude—like the\nFifth Circuit did before us in Nash—that Goldberg truly “is not contrary” to our\napproach here. Lastly, at the risk of stating the obvious: even if Goldberg’s\napproach were contrary to our own, as an out-of-circuit authority, Goldberg\nwould not be controlling here.\n\n 27\n\n Jokhoo’s application here is clear: it further undermines Mr. Iley’s claim\n\nthat § 2B1.1(b)(9)(C) cannot apply because the Order did not expressly enjoin\n\nhim from defrauding his clients. Indeed, the Eighth Circuit directly rejected such\n\na notion, stating that a prior “order need not expressly enjoin proscribed conduct.”\n\nId. Like Nash, the Jokhoo court found that the sanctions imposed on Mr.\n\nJokhoo—including civil penalties—were sufficient to order him to stop his\n\nfraudulent conduct. The same is true here. Coupled with its $10,000 fine, the\n\nOrder’s forward-looking remedial obligations were reasonably calculated to send\n\na definite and concrete message to Mr. Iley that he should cease (i.e., stop) the\n\nconduct that had given rise to the Order. But Mr. Iley did not stop.\n\nConsequently, as the court did in Jokhoo, we conclude that the district court\n\nrightly imposed the enhancement on Mr. Iley.\n\n Mr. Iley musters little caselaw in favor of a contrary result. As noted, he\n\nhas pointed out that the order in Pentrack differs from the Order here because it\n\n“specifically enjoined fraud.” Aplt.’s Opening Br. at 12. But, as discussed supra,\n\nthat fact ultimately does little for Mr. Iley. We have acknowledged that the\n\ndifferent facts in Pentrack mean that, standing alone, that case is not dispositive.\n\nAs demonstrated, however, Pentrack does not stand alone; persuasive circuit\n\nprecedent like Nash and Jokhoo supports the conclusion that we reach here. The\n\nonly other case involving application of the enhancement that Mr. Iley\n\n\n 28\n\naffirmatively relies on to support his first argument is our decision in United\n\nStates v. Lewis, 594 F.3d 1270 (10th Cir. 2010). Mr. Iley says that in Lewis\n\n“[t]his Court sustained the enhancement ‘because some transactions in the Ponzi\n\nscheme violated’ the ‘order issued by the Nebraska Department of Banking and\n\nFinance.’” Aplt.’s Opening Br. at 13 (quoting Lewis, 594 F.3d at 1287). Mr.\n\nIley’s reliance on Lewis, however, is misguided. In the language from Lewis that\n\nMr. Iley quotes as ostensibly stating the court’s holding, the Lewis panel is\n\nactually describing the district court’s rationale for imposing the\n\nenhancement—not the rationale of the Lewis panel. See Lewis, 594 F.3d at 1287\n\n(“The district court imposed this enhancement because some transactions in the\n\nPonzi scheme violated a cease-and-desist order issued by the Nebraska\n\nDepartment of Banking and Finance.”). And neither the argument that the Lewis\n\ndefendant presented to the district court nor the one he raised on appeal is even\n\nremotely relevant to the matters at issue here: “In the district court Lewis opposed\n\nthe two-level enhancement on the ground that the violation of the order was not\n\nforeseeable. His argument on appeal is different. He now argues that the\n\nenhancement should not apply because he did not have knowledge of the order.”\n\nId. at 1288. In short, Lewis is inapposite. Thus, Mr. Iley’s reliance on it is\n\nunavailing.\n\n\n\n\n 29\n\n Mr. Iley does not fare much better by asserting that “the guideline’s\n\ncommentary . . . indicate[s] that circumstances like Mr. Iley’s are outside the\n\nscope of § 2B1.1(b)(9)(C)” because it “confirm[s] that the guideline applies only\n\nwhere the defendant violated the express terms of a prior order.” Aplt.’s Opening\n\nBr. at 11 (emphasis added). Mr. Iley notes that the one illustrative hypothetical in\n\nthe commentary provides that “a defendant whose business previously was\n\nenjoined from selling a dangerous product, but who nonetheless engaged in\n\nfraudulent conduct to sell the product, is subject to this enhancement.” U.S.S.G.\n\n§ 2B1.1(b)(9)(C) cmt. n.8(C). However, Mr. Iley offers no argument to explain\n\nwhy we should view this hypothetical as helpful to him. Indeed, the hypothetical\n\ntells us nothing about the nature of the prior order that enjoined the sale of the\n\ndangerous product. Notably, notwithstanding Mr. Iley’s conclusory suggestion to\n\nthe contrary, see, e.g., Aplt.’s Reply Br. at 9, the hypothetical does not tell us\n\nwhether the prior order that enjoined the sale did so by it express terms or, as\n\nhere, by its substance—viz., by being “designed to prohibit prior misconduct of”\n\nthe same or similar sort as the defendant’s subsequent criminal conduct and by\n\nbeing “specific enough to provide the defendant with adequate notice of the\n\nprohibited conduct.” Pentrack, 428 F.3d at 990–91. Therefore, the hypothetical\n\ndoes not advance Mr. Iley’s cause.\n\n\n\n\n 30\n\n Mr. Iley also posits that “[t]he commentary further states that the guideline\n\napplies when the defendant’s fraud contravened a directive ‘to take or not to take\n\na specified action.’” Aplt.’s Opening Br. at 12 (quoting U.S.S.G. § 2B1.1(b)(9)(C)\n\ncmt. n.8(C)). But, again, Mr. Iley does not explain why the quoted commentary\n\nlanguage helps him. More specifically, he does not tell us why any such directive\n\nto take or not take such action must itself be set out in explicit terms, if the\n\ndirective’s substance—like the Order’s substance here—is “specific enough to\n\nprovide the defendant with adequate notice of the prohibited conduct,” Pentrack,\n\n428 F.3d at 990, and reasonably calculated to send the definite and concrete\n\nmessage to the defendant that he should cease (i.e., stop) the conduct that gave\n\nrise to the order. Moreover, in its analysis of the enhancement’s history, the\n\nPentrack court concluded that the “specified action” language was part of the\n\n“additional phrasing” that “merely clarifies the distinction between enhancements\n\nfor bankruptcy and non-bankruptcy fraud.” Id. Therefore, it does not seem that\n\nthis language was ever intended to shed any particular light on whether a\n\ndefendant’s subsequent criminal conduct must violate the express terms of a prior\n\ninjunction to qualify for the § 2B1.1(b)(9)(C) enhancement. Indeed, importantly,\n\nthis language did not stop the Pentrack panel from concluding that central to the\n\nspecificity inquiry is simply whether “the injunction is specific enough to provide\n\nthe defendant with adequate notice of the prohibited conduct.” Id. And, as noted,\n\n\n 31\n\nthe Order here was specific enough for this purpose. In sum, the Guidelines\n\ncommentary also lends Mr. Iley no succor.\n\n In summary, we hold that, at least under the specific circumstances of this\n\ncase, § 2B1.1(b)(9)(C) applies even though the Order did not expressly enjoin Mr.\n\nIley from defrauding his clients. In particular, we conclude that § 2B1.1(b)(9)(C)\n\nmay apply without an explicit injunction when, as here, the prior order (1)\n\nimposed a concrete punishment, such as a fine, on the defendant for the same or\n\nsimilar conduct at issue in the defendant’s subsequent offense; (2) imposed\n\nprospective remedial conditions or obligations, like practice monitoring and the\n\nfiling of quarterly reports—through a probationary term or otherwise—that were\n\nreasonably calculated to curtail future instances of the conduct at issue; and (3)\n\nnevertheless the defendant perpetrated that prohibited conduct while the order\n\nwas still in effect. 11\n\n B\n\n We now take up the second question: Whether Mr. Iley’s fraudulent\n\nconduct violated the Order where it expressly only punished him for negligent\n\n\n 11\n Our holding with regard to the scope of § 2B1.1(b)(9)(C) is limited\nto the issues necessary to decide this appeal. We leave for another day the\nquestion of whether § 2B1.1(b)(9)(C) applies when, as in Nash, the defendant\nreceived a fine and a warning, but was not expressly subject to any prospective\nremedial conditions or obligations. We similarly decline to decide whether the\nenhancement would apply when the crime was committed after any prospective\nfeatures of the prior order had expired.\n\n 32\n\nconduct. Mr. Iley claims that his offense conduct did not violate the Order\n\n“[b]ecause negligence is not similar conduct to fraud.” Aplt.’s Reply Br. at 14\n\nn.4. He maintains that, just as “a dog distinguishes between being stumbled over\n\nand being kicked,” we should distinguish between negligence and fraud. Id. at 13\n\n(quoting Oliver Wendell Holmes Jr., T HE C OMMON L AW at 3 (1881)). In more\n\nprosaic language, he contends that “a warning against being sloppy” does “not\n\namount to a warning not to steal clients’ money.” Id. at 14 n.4. Thus, Mr. Iley\n\nargues that by defrauding his clients, he did not violate the Order’s “warning\n\nagainst being sloppy.” Id.\n\n But, importantly, Mr. Iley offers us no reason to read a symmetry-of-\n\nmental-state requirement into § 2B1.1(b)(9)(C), or any on-point legal authority\n\nthat would support such a step. And there is reason to question whether the\n\nSentencing Commission contemplated such a significant limitation on the\n\nuniverse of defendants qualifying for the enhancement. Cf. U.S.S.G. § 2B1.1 cmt.\n\nn.8(C) (setting forth a hypothetical illustrating the enhancement’s application that\n\nascribes no particular mental state to the prior conduct that gave rise to an\n\ninjunction—involving the sale of a dangerous product—but that nevertheless\n\ndeems the enhancement appropriate where the defendant is expressly described as\n\nengaging in “fraudulent conduct to sell the [same or similar dangerous] product”).\n\n\n\n\n 33\n\n Indeed, in this regard, a defendant who commits certain conduct with a high\n\nlevel of culpable intent after being formally warned against committing the same\n\nunderlying conduct, while possessing a lower level of culpable intent, would seem\n\nto be even more worthy of the enhancement than a defendant who simply engages\n\nin the same prohibited conduct again, while possessing the same, lower level of\n\nculpable intent. That is because such a defendant seemingly would have\n\ndisplayed even more of the “aggravated criminal intent” that § 2B1.1(b)(9)(C)\n\naims to punish. U.S.S.G. § 2B1.1 cmt. background. Put another way, that\n\ndefendant would seemingly be more worthy of the enhancement because, not only\n\nwould his subsequent criminal conduct indicate that the prior order did not deter\n\nhim from engaging in the same prohibited conduct with the same level of culpable\n\nintent, but it also did not deter him from brazenly upping his game—viz., from\n\nengaging in the same or similar prohibited conduct with a higher level of\n\n“aggravated criminal intent.” Id.\n\n In this case, Mr. Iley evinced such brazen, and thus more sanction-worthy,\n\nconduct. The Order warned him that negligently harming his clients by taking\n\ntheir money ostensibly to pay their taxes to the IRS and then not doing so was\n\nprohibited and merited punishment and intrusive probationary conditions, like\n\npractice monitoring. Then, while still on probation for this negligent conduct,\n\nMr. Iley fraudulently misrepresented to his clients that he was taking their money\n\n\n 34\n\nto pay their taxes to the IRS and then knowingly diverted the money for other\n\npersonal uses. That is, Mr. Iley engaged in essentially the same or similar\n\nconduct when perpetrating his fraudulent scheme—the only critical difference\n\nbeing that, after being formally warned against doing so, he acted anyway with an\n\neven more culpable state of mind (i.e., fraudulently). As such, the district court\n\ncertainly did not err in ruling that Mr. Iley acted with the kind of “aggravated\n\ncriminal intent” that § 2B1.1(b)(9)(C) penalizes. Id. In other words, we hold that\n\nMr. Iley’s fraudulent conduct in not paying his clients’ funds (as promised) to the\n\nIRS could and did violate the Order, even though by its explicit terms the Order\n\nonly sanctioned Mr. Iley for his negligent commission of the same or similar acts.\n\n IV\n\n In conclusion, for the foregoing reasons, the district court did not err in\n\napplying the two-level enhancement under § 2B1.1(b)(9)(C) in Mr. Iley’s case.\n\nAccordingly, we AFFIRM the court’s sentencing order.\n\n\n\n\n 35\n\n17-1269, United States v. Iley", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364352/", "author_raw": "HOLMES, Circuit Judge."}, {"author": "HARTZ, J., Circuit Judge, concurring", "type": "concurrence", "text": "HARTZ, J., Circuit Judge, concurring.\n\n I concur in the judgment and all of Judge Holmes’s fine opinion except the\n\ndiscussion of United States v. Nash, 729 F.3d 400 (5th Cir. 2013), and United States v.\n\nJokhoo, 806 F.3d 1137 (8th Cir. 2015). In particular, I agree with the opinion’s\n\ndetermination that the context of the Order of the Colorado Board of Accountancy made\n\nclear that the fraudulent conduct of which Defendant was later convicted would be a\n\nviolation of the terms of his probation under the Order.\n\n In my view, Judge Holmes’s opinion is fully convincing without any need for\n\nsupport from Nash and Jokhoo. And I think those two decisions are misguided because\n\nthey in essence transform USSG § 2B1.1(b)(9)(C) into a recidivist provision, increasing a\n\ndefendant’s offense level simply because the defendant had previously been penalized by\n\na court or administrative agency for similar misconduct. See Nash, 729 F.3d at 406–07\n\n(Garza, J., dissenting). I am therefore reluctant to embrace the reasoning that brought\n\nthose courts to their holdings (even though Judge Holmes’s opinion is careful not to\n\nendorse the holdings in the two cases).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364352/", "author_raw": "HARTZ, J., Circuit Judge, concurring"}]}	LUCERO	HARTZ	HOLMES	1	{}	4	0	2	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4587099/	Published	1	1	1	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,299	Angela KILE; Jody Lemmings, Plaintiffs, v. UNITED STATES of America, Defendant-Appellee, and CompHealth, Inc., a Delaware Corporation Formerly Known as C.H.S., Inc; CompHealth Medical Staffing, Inc., a Delaware Corporation; Romulo G. Perez, Defendants. Barbara Lemmings; Oran Hurley, Jr., Movants-Appellants.	Kile v. United States	2019-02-11	18-7004	U.S. Court of Appeals for the Tenth Circuit	{"judges": "McHugh, Murphy, Carson", "parties": "", "opinions": [{"author": "CARSON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 11, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n ANGELA KILE; JODY LEMMINGS,\n\n Plaintiffs,\n\n v. No. 18-7004\n\n UNITED STATES OF AMERICA,\n\n Defendant - Appellee,\n\n and\n\n COMPHEALTH, INC., a Delaware\n corporation formerly known as C.H.S., Inc;\n COMPHEALTH MEDICAL STAFFING,\n INC., a Delaware corporation; ROMULO\n G. PEREZ,\n\n Defendants.\n\n ------------------------------\n\n BARBARA LEMMINGS; ORAN\n HURLEY, JR.,\n\n Movants - Appellants.\n _________________________________\n\n Appeal from the United States District Court\n for the Eastern District of Oklahoma\n (D.C. No. 6:00-CV-00404-KEW)\n _________________________________\n\nGeorge W. Braly, Braly, Braly, Speed & Morris, PLLC, Ada, Oklahoma, appearing for\nAppellants Barbara Lemmings and Oran Hurley, Jr.\n\fElliott M. Davis, Trial Attorney, United States Department of Justice, Washington D.C.\n(Susan Stidham Brandon, Assistant United States Attorney, United States Attorney’s\nOffice, Muskogee, OK, with him on the brief), appearing for Appellee United States of\nAmerica.\n _________________________________\n\nBefore McHUGH, MURPHY, and CARSON, Circuit Judges.\n _________________________________\n\nCARSON, Circuit Judge.\n _________________________________\n\n Federal Rule of Civil Procedure 17 controls when a district court must appoint\n\na guardian ad litem for a minor settling claims with a defendant. The plain language\n\nof the Rule is clear: a district court is not required to appoint a guardian ad litem\n\nevery time it considers the fairness of a settlement. Rather, a district court need only\n\nappoint a guardian ad litem where the minor is not otherwise represented by a general\n\nguardian or other appropriate person. We thus reject Appellants Barbara Lemmings\n\nand Oran Hurley, Jr.’s contention that the rule requires the formal appointment of a\n\nguardian ad litem whenever a parent and child settle their claims with a defendant.\n\nWe further reject the contention that an inherent conflict of interest always exists\n\nwhere a minor is represented by a parent who is a party to the same lawsuit as the\n\nminor.\n\n I.\n\n Plaintiff Millard Lance Lemmings (“Lance”) was born at a government-\n\noperated hospital in Ada, Oklahoma. During his birth, Lance suffered a brain injury.\n\nHe cannot speak, walk, or care for himself. Lance and his parents, suing as “parents\n\nand next friends,” filed this civil action against Defendants on August 8, 2000.\n\n 2\n\fPlaintiffs alleged that Defendants committed medical malpractice during Lance’s\n\nbirth and sued under the Federal Tort Claims Act.\n\n The parties settled the case on September 28, 2001. Lance’s parents were\n\nsimultaneously engaged in a state court proceeding regarding guardianship of Lance.\n\nOn the morning of October 25, 2001, Lance’s parents filed an application for an\n\norder approving the agreed settlement, attorneys’ fees, and litigation costs in the state\n\ncourt action. The state district court appointed Lance’s parents as the guardians of\n\nLance’s estate. Following that court order, Lance’s parents withdrew their state court\n\napplication for an order approving the settlement. Later that day, Lance’s parents\n\nappeared before the federal district court for a fairness hearing regarding the\n\nsettlement. Lance’s parents represented him at the fairness hearing. The district\n\ncourt did not appoint a guardian ad litem.\n\n At the fairness hearing, Plaintiffs’ counsel recited the terms of the settlement\n\ninto the record in detail. The parties settled the matter for $5,000,000.00. Of that\n\namount, the United States paid $1,350,000.00 into a reversionary medical trust\n\n(“Irrevocable Governmental Trust”) and the remaining two Defendants paid a\n\ncombined $1,000,000.00 into a separate trust (“Non-Governmental Trust”). The\n\nUnited States funded the Irrevocable Governmental Trust with annuities. By its\n\nterms, the Irrevocable Governmental Trust is a “secondary payor” after Lance\n\nexhausts coverage from Medicare, Medicaid, and any tribal or insurance benefits. In\n\nthe event of Lance’s death, the Irrevocable Governmental Trust benefits revert to the\n\nUnited States. The United States paid an additional $2,650,000.00 to Plaintiffs\n\n 3\n\foutside of the Irrevocable Governmental Trust. Of that amount, Plaintiffs’ attorneys\n\nreceived $1,425,000.00.\n\n Lance’s parents, Angela Kile and Jody Lemmings, testified at the fairness\n\nhearing. Both Kile and Lemmings acknowledged that they understood the terms of\n\nthe settlement. Additionally, they stated that they had cared for Lance since his birth\n\nand confirmed their plan to care for him in the future. The court sealed the fairness\n\nhearing transcript.\n\n On October 25, 2001, the district court approved the settlement. At the same\n\ntime, the parties executed a Stipulation for Compromise Settlement and Release of\n\nFederal Tort Claims Act Claims and Judgment Dismissing Action by Reason of\n\nSettlement. The next day, the parties filed a Release of Claims. On December 5,\n\n2001, the case concluded with the filing of a Stipulation of Dismissal with Prejudice.\n\nThe district court did not retain jurisdiction to further affect the settlement or the\n\ntrusts the settlement documents created.\n\n Over fifteen years later, on June 16, 2017, Appellants filed a motion seeking to\n\nintervene, in which they contended: (1) the parties presented materially inaccurate\n\ninformation to the district court in 2001 in order to obtain the district court’s\n\napproval; (2) the district court did not have jurisdiction to approve the settlement\n\nbecause it did not appoint a guardian ad litem to represent Lance; and (3) a conflict\n\nof interest existed between Lance and his parents which required the appointment of\n\na guardian ad litem. Belatedly, Appellants further sought access to the 2001 sealed\n\nfairness hearing transcript. In the motion to intervene, Appellants asserted that\n\n 4\n\fLance’s parents spent a large portion of the proceeds and abandoned him in 2011,\n\nleaving him in the care of his paternal grandmother, Appellant Barbara Lemmings.\n\nThe state district court appointed her Lance’s guardian in January 2017. After Ms.\n\nLemmings suffered a health issue, the state court appointed Appellant Oran Hurley,\n\nJr. as co-guardian. Appellants sought to reopen the district court action, vacate the\n\ndismissal, intervene, and rewrite the terms of the Irrevocable Governmental Trust in\n\norder to access the proceeds contained in that trust. The United States objected.\n\n In December 2017, the district court issued an Order denying Appellants’\n\nrequest. It held that no basis in law existed to invade the finality of the stipulation of\n\ndismissal. The district court therefore concluded it lacked jurisdiction to consider\n\nAppellants’ requested relief. As to Appellants’ requested access to the sealed\n\ntranscript of the fairness hearing, the district court denied the request. The district\n\ncourt stated that because it lacked the jurisdiction to grant the relief requested,\n\nintervention would be futile. And, because the district court did not allow Appellants\n\nto intervene, it concluded they remained non-parties who were not entitled to access\n\nto the sealed transcript of the fairness hearing. Appellants appealed. Our jurisdiction\n\narises under 28 U.S.C. § 1291. We affirm.\n\n\n\n II.\n\n Appellants assert the district court erred in concluding that, without the\n\nappointment of a guardian ad litem, it had no personal jurisdiction over Lance to\n\napprove and enter the settlement agreement on October 25, 2001. Because of that\n\n 5\n\falleged error, Appellants next contend the district court erred in determining that it\n\nlacked jurisdiction under Federal Rule of Civil Procedure 60(b) to consider\n\nAppellants’ requested relief. Finally, Appellants argue the district court’s refusal to\n\nallow Appellants access to the sealed transcript of the fairness hearing denied Lance\n\nhis fundamental constitutional right to due process. We address each issue in turn.\n\n A.\n\n Federal Rule of Civil Procedure (“Rule”) 60(b)(4) provides that a court may\n\nrelieve a party from final judgment if the judgment is void. A judgment is void for\n\nRule 60(b)(4) purposes if the rendering court lacked the power to enter it. Gschwind\n\nv. Cessna Aircraft Co., 232 F.3d 1342, 1346 (10th Cir. 2000). This occurs “only if\n\nthe court which rendered it lacked jurisdiction of the subject matter, or of the parties,\n\nor acted in a manner inconsistent with due process of law.” United States v. Buck,\n\n281 F.3d 1336, 1344 (10th Cir. 2002). Unlike other Rule 60(b) motions, relief from a\n\nvoid judgment is mandatory. Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203\n\n(10th Cir. 1986). “We review de novo the district court’s ruling on a Rule 60(b)(4)\n\nmotion.” Buck, 281 F.3d at 1344.\n\n Appellants contend the 2001 judgment in this civil action is void because the\n\ndistrict court lacked personal jurisdiction over Lance. Specifically, Appellants argue\n\nthat a guardian ad litem for Lance was a necessary and indispensable party. Federal\n\nRule of Civil Procedure 17(c) controls the procedural question of the appointment of\n\na guardian ad litem. In 2001, Rule 17(c) provided:\n\n\n\n 6\n\f Whenever an infant or incompetent person has a representative, such as a\n general guardian, committee, conservator, or other like fiduciary, the\n representative may sue or defend on behalf of the infant or incompetent\n person. An infant or incompetent person who does not have a duly\n appointed representative may sue by a next friend or by a guardian ad litem.\n The court shall appoint a guardian ad litem for an infant or incompetent\n person not otherwise represented in an action or shall make such other\n order as it deems proper for the protection of the infant or incompetent\n person.1\n Appellants urge us to adopt a mandatory rule that whenever a child and a\n\nparent settle their claims against a defendant, a district court must appoint a guardian\n\nad litem to represent the child’s interests or it must make findings that no such\n\nappointment is necessary. We reject such a rule.\n\n The plain language of Rule 17(c) does not require the district court to appoint\n\na guardian ad litem in all cases. Instead, the Rule provides that the court shall\n\nappoint a guardian ad litem for a person not otherwise represented in an action.2\n\n\n\n\n 1\n We note that our analysis is the same under the current version of Rule 17(c),\nthe language of which the Committee amended in 2007 as part of the general\nrestyling of the Federal Rules of Civil Procedure.\n 2\n Appellants point us to Roberts v. Ohio Casualty Insurance Company, 256\nF.2d 35 (5th Cir. 1958). The Roberts court held that the “orderly administration of\njustice and the procedural protection of minors requires the trial judge to give due\nconsideration to the propriety of an infant’s representation by a guardian ad litem\nbefore he may dispense with the necessity of appointing the guardian.” Id. at 39.\nThat case is factually distinguishable. In Roberts, the district court granted judgment\nagainst minor children who were not represented by guardians or next friends. Id. at\n37. Because the minor children were not represented, the Roberts court considered\nthe final sentence of Rule 17(c), which provided that the court shall appoint a\nguardian ad litem for an infant not otherwise represented. In this case, Lance was\nrepresented at the settlement by his parents, who expressly served as his general\nguardians and next friends.\n 7\n\fRule 17(c) further provides that an infant or incompetent person may sue by “a next\n\nfriend.” Thus, Appellants’ position is foreclosed by the plain language of Rule 17(c).\n\n The established caselaw precludes the relief sought by Appellants as well.\n\nCourts addressing the issue have held that “unless a conflict of interest exists\n\nbetween the representative and minor, a district court need not even consider the\n\nquestion whether a guardian ad litem should be appointed.” Burke v. Smith, 252\n\nF.3d 1260, 1264 (11th Cir. 2001) (citing Croce v. Bromley Corp., 623 F.2d 1084,\n\n1093 (5th Cir. 1980)). “[W]hen a minor is represented by a parent who is a party to\n\nthe lawsuit and who has the same interests as the child there is no inherent conflict of\n\ninterest.” Id. Indeed, absent an apparent conflict of interest, the appointment of a\n\nguardian ad litem is not necessary where a parent is a party to the lawsuit and presses\n\nthe child’s claims before the court. Croce, 623 F.2d at 1093.\n\n Appellants further urge us to consider that Lance’s parents were unmarried,\n\nallegedly did not have a stable family relationship, and never received state court\n\napproval of the settlement agreement. Marital status and wealth do not impact our\n\nanalysis. Nor does it matter that the parties abandoned their motion for approval in\n\nstate court once the state court officially named Lance’s parents his guardians. At\n\nthat time, the evidence before the district court showed that Lance’s parents had\n\ncared for Lance, that they would continue to care for him in the future, and that the\n\nstate court had appointed them as his general guardians.\n\n We perceive no inherent conflict of interest between Lance and his parents as\n\nhis representatives. Moreover, for purposes of reopening this civil action that had\n\n 8\n\fbeen dormant for over fifteen years, although Appellants allege that Lance’s parents\n\nsquandered a share of the settlement proceeds, we cannot conclude from the record\n\nthat an actual conflict existed at the time the district court approved the settlement.\n\nFor these reasons, we hold that Rule 17(c) did not require the district court to sua\n\nsponte appoint a guardian ad litem and that the district court properly exercised\n\npersonal jurisdiction over Lance. Accordingly, the judgment was not void and\n\nAppellants are entitled to no relief under Rule 60(b)(4).\n\n Appellants alternatively argue that Rule 60(b)(6), the catch-all provision,\n\npermits reopening in this case. This provision applies when the movant shows any\n\nreason justifying relief from the operation of the judgment. We have described Rule\n\n60(b)(6) as a “grand reservoir of equitable power to do justice in a particular case.”\n\nCashner v. Freedom Stores, Inc., 98 F.3d 572, 579 (10th Cir. 1996). However, a\n\ndistrict court may grant a Rule 60(b)(6) motion “only in extraordinary circumstances\n\nand only when necessary to accomplish justice.” Id. “We have sometimes found\n\nsuch extraordinary circumstances to exist when, after entry of judgment, events not\n\ncontemplated by the moving party render enforcement of the judgment inequitable.”\n\nId. The “broad power granted by clause (6) is not for the purpose of relieving a party\n\nfrom free, calculated, and deliberate choices he has made.” Id. We review the\n\ndistrict court’s decision to deny a Rule 60(b)(6) motion for an abuse of discretion.\n\nLaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir. 2003).\n\n A Rule 60(b)(6) motion must be made within a reasonable time. Fed. R. Civ.\n\nP. 60(c)(1). In this case, almost sixteen years passed between the settlement and\n\n 9\n\fAppellants’ motion to the district court. Appellant Barbara Lemmings has cared for\n\nLance since 2011 even though she did not become his guardian until 2017. As the\n\ndistrict court noted, Appellant Barbara Lemmings knew of the manner in which\n\npayment was being made for Lance’s care in 2011, but waited until 2017 to file her\n\nmotion. In the context of this case, a motion made sixteen years after the entry of\n\njudgment is not reasonable.\n\n The district court further denied the Rule 60(b)(6) motion on the ground that\n\nmistakes that led to entering into an “improvident bargain” do not provide a basis for\n\nrelief. Rule 60(b)(6) cannot be used to set aside “a free, counseled, deliberate choice\n\nwhose consequences in hindsight are unfortunate.” Cashner, 98 F.3d at 580. Thus,\n\neven if the settlement upon which the parties agreed constituted a bad deal in\n\nhindsight, there is “nothing sufficiently ‘unusual or compelling’ about making a bad\n\nbargain to warrant relief under Rule 60(b)(6).” Id. Accordingly, we conclude that\n\nthe district court did not abuse its discretion in denying Appellants’ Rule 60(b)(6)\n\nmotion.\n\n B.\n\n Appellants further seek access to the sealed transcript of the fairness hearing.\n\nCourt documents “are covered by a common law right of access.” United States v.\n\nMcVeigh, 119 F.3d 806, 811 (10th Cir. 1997). “Under that doctrine, judicial\n\ndocuments are presumptively available to the public, but may be sealed if the right to\n\naccess is outweighed by the interests favoring nondisclosure.” Id. “Once a court\n\norders documents before it sealed, the court continues to have authority to enforce its\n\n 10\n\forder sealing those documents, as well as authority to loosen or eliminate any\n\nrestrictions on the sealed documents.” United States v. Pickard, 733 F.3d 1297, 1300\n\n(10th Cir. 2013). “Challenges to closure decisions based on the common law right of\n\naccess are reviewed for abuse of discretion.” McVeigh, 119 F.3d at 811; see also\n\nPickard, 733 F.3d at 1302 (reviewing decision to seal or unseal documents for an\n\nabuse of discretion).\n\n In this case, the district court denied Appellants access to the sealed transcript.\n\nThe district court concluded that because it denied intervention, Appellants remained\n\nnonparties to the case and were, therefore, not entitled to access.3 We agree with the\n\ndistrict court that Appellants, as of now, are non-parties to the action and are not\n\nentitled to the sealed transcript in this capacity.4 That is not to say Appellants cannot\n\nstill obtain the sealed transcript in another manner. Appellants became guardians for\n\n\n\n 3\n Appellants allege that the government lacks standing to oppose their request\nfor access to the sealed transcript and in doing so violated its formal regulatory\nmandates. In support of this argument, Appellants cite 28 C.F.R. § 50.23, which\nprovides that the government’s policy is not to enter into final settlement agreements\nor consent decrees that are subject to confidentiality provisions, or to seek or concur\nin the sealing of such documents. In this case, the settlement agreement provides that\nit may be made public in its entirety. 28 C.F.R. § 50.23 does not speak to a district\ncourt’s decision to grant or deny a non-party’s access to sealed court records.\nAccordingly, Appellants’ argument that the government has no standing to oppose\nunsealing court records is without merit.\n 4\n On appeal, Appellants complain the district court characterized them as\nintervenors rather than as Lance’s guardians. But Appellants ignore that they\ncharacterized themselves as intervenors rather than as an existing Plaintiff. Indeed,\nin their initial motion to the district court, Appellants asked the district court “to\nallow them to intervene as a party in this matter” in order to modify the terms of the\nIrrevocable Governmental Trust.\n 11\n\fLance, a party, in 2017. At no time did Appellants seek permissive intervention for\n\nthe limited purpose of accessing the sealed transcript. Nor did Appellants seek to\n\nsubstitute themselves in place of Lance’s parents as parties to this civil action and\n\nsimply ask for the transcript by standing in Lance’s shoes. Had Appellants sought\n\nthe transcript in a correct manner, the district court would have abused its discretion\n\nin denying their request. Until Appellants either substitute in the action or intervene\n\nfor the limited purpose of obtaining the transcript, they are nonparties not entitled to\n\nthe transcript.\n\n III.\n\n For the foregoing reasons, the district court’s judgment is AFFIRMED.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366552/", "author_raw": "CARSON, Circuit Judge."}]}	MCHUGH	MURPHY	CARSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589299/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,751	James NELSON; Elizabeth Varney, Plaintiffs - Appellees, v. UNITED STATES of America, Defendant - Appellant.	Nelson v. United States	2019-02-12	17-1388	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Matheson, Phillips, McHugh", "parties": "", "opinions": [{"author": "McHUGH", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 12, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n JAMES NELSON; ELIZABETH\n VARNEY,\n\n Plaintiffs - Appellees, No. 17-1388\n\n v.\n\n UNITED STATES OF AMERICA,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:11-CV-02953-WYD-CBS)\n _________________________________\n\nJoshua M. Salzman, Appellate Staff Attorney, Civil Division (Chad A. Readler, Acting\nAssistant Attorney General; Bob Troyer, United States Attorney; and Mark B. Stern,\nAppellate Staff Attorney, Civil Division, with him on the briefs), United States\nDepartment of Justice, Washington, D.C., for Defendant – Appellant.\n\nRobert T. Fishman, Ridley, McGreevy & Winocur, PC, Denver, Colorado (David P.\nHersh, Steven G. Greenlee, Burg Simpson Eldredge Hersh & Jardine, PC., Englewood,\nColorado, with him on the brief), for Plaintiffs – Appellees.\n _________________________________\n\nBefore MATHESON, PHILLIPS, and McHUGH, Circuit Judges.\n _________________________________\n\nMcHUGH, Circuit Judge.\n _________________________________\n\f In 2008, Mr. James Nelson was seriously injured while riding his bicycle on\n\nUnited States Air Force Academy land. He and his wife, Elizabeth Varney,1 sued the\n\nAcademy under the Federal Tort Claims Act (“FTCA”), seeking damages. The\n\ndistrict court ruled in their favor and awarded them approximately $7 million in\n\ndamages. In a previous appeal, we reversed that decision, holding that the Colorado\n\nRecreational Use Statute (the “CRUS”) shielded the Academy from liability. But we\n\nremanded on the issue of whether an exception to the statute’s liability shield\n\napplied. On remand, the district court held that an exception did apply and reinstated\n\nits prior judgment. The Academy then brought this appeal.\n\n Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I. BACKGROUND\n\n On September 3, 2008, Mr. Nelson was involved in a bicycle accident while\n\nriding on an asphalt path on Academy land. Nelson v. United States (“Nelson III”),\n\n256 F. Supp. 3d 1136, 1141 (D. Colo. 2017). He struck a sinkhole, “lost control of\n\nhis bicycle,” and “was flung onto the asphalt path,” suffering severe injuries. Id. The\n\nasphalt path ran parallel to Interstate 25 and was within an easement held by the\n\nColorado Department of Transportation (“CDOT”), though CDOT was not\n\nresponsible for maintaining the path. See id. at 1141–42. At both entrances to the\n\npath were two signs—one that read, “Bicycle Path, No Motorized Vehicles,” and\n\nanother, less visible, that prohibited entry onto Academy property. See id. at 1145;\n\n\n 1\n For ease of reference, we refer to Mr. Nelson and Ms. Varney collectively as\nthe Nelsons.\n 2\n\fNelson v. United States (“Nelson II”), 827 F.3d 927, 929 (10th Cir. 2016). The\n\nAcademy did not post the bicycle-path signs, nor did it otherwise designate the path\n\nas a recreational trail. Nelson III, 256 F. Supp. 3d at 1144–45. In fact, the Academy\n\nconsidered public users to be trespassers. Id. Yet, despite knowing the public used the\n\npath, the Academy did not take any affirmative steps to preclude the public or\n\nremove the bicycle-path signs prior to Mr. Nelson’s accident. See id.\n\n The sinkhole that Mr. Nelson encountered “encompassed the entire width of\n\nthe path” and was created by “wash-out/erosion problems in the area.” Id. at 1143.\n\nDespite its size, the sinkhole was difficult to see by users of the path. See id. The\n\nsinkhole was first discovered on August 20, 2008, by Dr. Brian Mihlbachler, a\n\nbiologist with the Fish and Wildlife Service. Id. at 1145–46. Dr. Mihlbachler “had\n\n[the] responsibility for managing the natural resources on the Academy’s” land,\n\nparticularly monitoring “serious erosion and sedimentation issues” and “reporting to\n\nthe appropriate party if issues were identified.” Id. at 1146. Dr. Mihlbachler was an\n\nemployee of the Academy and “had responsibilities related to Academy safety and\n\nsecurity and reporting safety concerns.” Id. at 1147. He found the sinkhole while\n\nmonitoring erosion “along [the Academy’s] boundary.” Id. at 1146. Dr. Mihlbachler\n\nphotographed and documented the sinkhole but “did not report the sinkhole or show\n\nthe photographs to anyone.” Consequently, he was the only Academy employee who\n\nwas actually aware of the sinkhole before Mr. Nelson’s accident. Id. at 1146–47.\n\nDespite knowing the path was being used at least occasionally “for recreational\n\n\n\n 3\n\fpurposes,” id. at 1144, 1161, Dr. Mihlbachler did not take any steps to warn of, fill\n\nin, or cordon off the sinkhole prior to the accident, id. at 1147–49.\n\n Mr. Nelson and his wife filed suit against the Academy in district court,\n\nseeking damages under the FTCA. Id. at 1140. The district court found that Mr.\n\nNelson was an invitee or licensee and that the Academy was liable for his injuries. Id.\n\nThe district court awarded him approximately $7 million for his injuries and losses\n\nand awarded Ms. Varney $401,425 for loss of consortium. Id. The Academy had\n\nargued the CRUS shielded it from liability, but the district court held the CRUS was\n\ninapplicable. See id. The Academy appealed, and we reversed the district court,\n\nconcluding the CRUS did apply. Nelson II, 827 F.3d at 929. But we did not reach the\n\nquestion of whether an exception to the CRUS applied. Instead, we remanded to the\n\ndistrict court to make that determination in the first instance. Id. at 933. On remand,\n\nthe district court held that “the Academy and Dr. Mihlbachler” were not shielded\n\nfrom liability under the CRUS because, per an exception to the CRUS relevant here\n\n(“the CRUS exception”), they “willfully ignored the dangerous condition on the path\n\nand chose not to take steps to warn or guard users like Mr. Nelson against that\n\ndanger.” Nelson III, 256 F. Supp. 3d at 1165; see also Colo. Rev. Stat § 33-41-\n\n104(1). The district court also held alternatively that even if the Academy’s and Dr.\n\nMihlbachler’s actions were not considered collectively, “Dr. Mihlbachler acted\n\nwillfully” and thus the Academy was liable. See id. The Academy brought this\n\nappeal.\n\n\n\n 4\n\f We agree with the district court that Dr. Mihlbachler’s actions and knowledge\n\nalone are sufficient to support a finding of liability against the Academy.2\n\n II. DISCUSSION\n\n In reviewing the district court’s conclusion that Mr. Nelson’s claim falls\n\nwithin the CRUS exception, we first provide an overview of that exception under\n\nColorado law. Then, we review the district court’s decisions in some detail to assess\n\nwhether the court’s conclusion is correct according to Colorado law, and whether it is\n\nsupported by the district court’s factual findings. Ultimately, we determine that\n\njudgment in favor of the Nelsons is proper, and we affirm the decision of the district\n\ncourt.\n\n A. The CRUS and the CRUS Exception\n\n The Colorado General Assembly adopted the CRUS “to encourage owners of\n\nland to make land and water areas available for recreational purposes.” Colo. Rev.\n\nStat. § 33-41-101. It attempts to accomplish this goal “by limiting [landowner]\n\nliability toward persons entering thereon for [recreational] purposes.” Id.\n\nAccordingly, the CRUS provides a near complete liability shield to landowners “who\n\ndirectly or indirectly invite[] or permit[], without charge, any person to use [their]\n\nproperty for recreational purposes.” Id. § 33-41-103(1). But this broad liability shield\n\nis only nearly complete. Relevant here, the CRUS exception states that “[n]othing in\n\n\n 2\n Because we believe Dr. Mihlbachler’s conduct and knowledge on their own\nprovide a basis for affirming the district court, we do not reach the question whether\nthe Academy is liable via the collective imputation of Dr. Mihlbachler’s and other\nAcademy employees’ knowledge.\n 5\n\f[the CRUS] limits in any way any liability which would otherwise exist . . . [f]or\n\nwillful or malicious failure to guard or warn against a known dangerous condition,\n\nuse, structure, or activity likely to cause harm.” Id. § 33-41-104(1).\n\n The core legal issue in this case is a question of state law—the proper\n\ninterpretation of the CRUS exception. “In FTCA cases, we review the district court’s\n\ndetermination of state tort law de novo.” Nelson II, 827 F.3d at 930. “When the\n\nfederal courts are called upon to interpret state law, the federal court must look to the\n\nrulings of the highest state court, and, if no such rulings exist, must endeavor to\n\npredict how that high court would rule.” Johnson v. Riddle, 305 F.3d 1107, 1118\n\n(10th Cir. 2002). When interpreting a statute, Colorado courts “first look to the\n\nstatutory language and give words and phrases their plain and ordinary meaning.”\n\nClimax Molybdenum Co. v. Walter, 812 P.2d 1168, 1173 (Colo. 1991). They also\n\nexamine “the statute as a whole and strive to give ‘consistent, harmonious, and\n\nsensible effect to all parts.’” Reno v. Marks, 349 P.3d 248, 253 (Colo. 2015) (quoting\n\nDenver Post Corp. v. Ritter, 255 P.3d 1083, 1088–89 (Colo. 2011)). If a statute\n\ngrants immunity in derogation of the common law, Colorado courts construe the\n\ngrant of immunity narrowly and exceptions to that grant broadly. See Burnett v. State\n\nDep't of Nat. Res., 346 P.3d 1005, 1008 (Colo. 2015). But throughout the statutory\n\nconstruction inquiry, the “touchstone remains the intent of the legislature.” St. Vrain\n\nValley Sch. Dist. RE-1J v. A.R.L. ex rel. Loveland, 325 P.3d 1014, 1019 (Colo. 2014).\n\n We agree with the district court that “Colorado appellate courts,” including the\n\nColorado Supreme Court, “have not specifically construed” the CRUS exception. See\n\n 6\n\fNelson III, 256 F. Supp. 3d at 1149. Thus, we have the responsibility to predict how\n\nthe Colorado Supreme Court would interpret it in the first instance. See Johnson, 305\n\nF.3d at 1118. Before considering the text of the statute, however, we must determine\n\nwhether the CRUS derogates the common law such that we are required to construe\n\nthe CRUS’s liability shield narrowly and the CRUS exception broadly. See Burnett,\n\n346 P.3d at 1008. The Academy argues this doctrine is inapplicable here because the\n\nCRUS “does not displace the common law, but rather the Colorado Premises\n\nLiability Act [(“CPLA”)].” Appellant’s Br. at 23–24. The CPLA sets out the\n\ncircumstances under which landowners may be liable to entrants on their property,\n\nsee Colo. Rev. Stat. § 13-21-115(2)–(5), and aspects of it represent “substantial\n\ndeparture[s] from the common law,” see Larrieu v. Best Buy Stores, L.P., 303 P.3d\n\n558, 565 & n.9 (Colo. 2013); Colo. Rev. Stat. § 13-21-115(1.5)(e) (explaining that\n\nthe purpose of the CPLA is, among other things, “to protect landowners from liability\n\nin some circumstances when they were not protected at common law”). The Academy\n\nsuggests that because the CPLA displaced the common law, any further changes to\n\nlandowner liability displace only the CPLA. This, is at least in part because the\n\nCPLA “was designed to enhance protections for landowners.” See Appellant’s Br. at\n\n23–24 (citing Colo. Rev. Stat. § 13-21-115(1.5)(e)). We are not convinced.\n\n The Academy’s argument suffers from at least two flaws. First, it assumes\n\nwithout authority that multiple statutes cannot, either working in tandem or\n\nseparately, derogate the same general area of common law. Second, it overlooks that\n\nthe CPLA and the CRUS have consonant purposes. The CRUS was passed to\n\n 7\n\f“encourage owners of land to make land and water areas available for recreational\n\npurposes by limiting their liability toward persons entering thereon for such\n\npurposes.” Colo. Rev. Stat. § 13-41-101. And, as the Academy notes, the purpose of\n\nthe CPLA is “to create a legal climate which will promote private property rights and\n\ncommercial enterprise and will foster the availability and affordability of insurance”\n\nby “protect[ing] landowners from liability in some circumstances when they were not\n\nprotected at common law.” Id. § 13-21-115(1.5)(d)–(e). In short, the CRUS did not\n\ndisplace the CPLA but furthered its purpose. So the CRUS, either on its own or\n\nworking in tandem with the CPLA, derogates the common law. Thus, its liability\n\nshield must be construed narrowly and the CRUS exception must be construed\n\nbroadly.\n\n We now move to the text of the statute. The parties do not dispute most of the\n\ndistrict court’s construction of the CRUS exception—neither party claims that the\n\nterm “malicious” applies here nor that we are considering a dangerous “use,\n\nstructure, or activity.” See Colo. Rev. Stat. § 33-41-104(1)(a). The CRUS exception’s\n\nremaining relevant text indicates that a landowner is liable for injuries on its land that\n\nresult from a “willful . . . failure to guard or warn against a known dangerous\n\ncondition . . . likely to cause harm.” See id. The Academy also has not disputed the\n\ndistrict court’s findings that the sinkhole was a dangerous condition likely to cause\n\nharm, see Nelson III, 256 F. Supp. 3d at 1150–52, that Dr. Mihlbachler knew the path\n\nwas being used for recreational purposes, id. at 1144, 1161, that Dr. Mihlbachler\n\nfailed to warn or guard against the dangers inherent in the sinkhole on a known bike\n\n 8\n\fpath, id. at 1147–49, 1162–65, or that Dr. Mihlbachler knew about the sinkhole prior\n\nto Mr. Nelson’s accident, id. at 1146–47; see also Appellant’s Reply Br. at 13\n\n(explaining that the Academy is not “challeng[ing] the district court’s findings” of\n\nfact).\n\n This leaves us with two disputes: whether Dr. Mihlbachler knew the sinkhole\n\nwas a “dangerous condition likely to cause harm” and whether his failure to warn or\n\nguard against that dangerous condition was “willful.” Before addressing those issues,\n\nwe define the terms “known” and willful” under Colorado law. We then proceed to\n\napply that law to the facts found by the district court.\n\n1. Knowledge Under Colorado Law\n\n For a landowner to be found liable despite the CRUS’s liability shield, it (or its\n\nagent) must willfully fail to warn or guard against a “known dangerous condition . . .\n\nlikely to cause harm.” See Colo. Rev. Stat. § 33-41-104(1)(a) (emphasis added). The\n\nColorado Supreme Court recently explained that “[s]tatutory interpretation in\n\nColorado has consistently construed the words ‘know’ or ‘knowingly’ without [a]\n\nqualifying ‘should have known’ to require actual knowledge.” Przekurat ex rel.\n\nPrzekurat v. Torres, 428 P.3d 512, 516, reh’g denied (2018).3 The court defined\n\n\n\n\n 3\n The Colorado Supreme Court issued Przekurat ex rel. Przekurat v. Torres,\n428 P.3d 512, 516, reh’g denied (2018), after the briefing in this court, but before\noral argument. Neither party alerted us to the decision at oral argument or by a letter\nunder Federal Rule of Appellate Procedure 28(j).\n\n 9\n\factual knowledge as “one’s awareness of objective facts.”4 Id. at 517. In Przekurat,\n\nthe court was interpreting an exception to the Colorado Dram Shop Act’s liability\n\nshield for “social hosts.” Id. at 514–15. That exception reinstates potential liability\n\nfor a social host who “knowingly provide[s] the person under the age of twenty-one a\n\nplace to consume an alcoholic beverage.” Id. at 515 (quoting Colo. Rev. Stat.\n\n§ 12-47-801(4)(a) (2017)). The court concluded that the “knowing” “mens rea”\n\napplied to “both the provision of the space for alcohol consumption and the age of\n\nthe specific underage drinker.” Id. at 515.\n\n Because we believe Przekurat is indicative of how the Colorado Supreme\n\nCourt would resolve this case, we apply it analogously. As in Przekurat, the\n\nknowledge element of the CRUS exception is not qualified by “reason to know” and\n\nthus requires actual knowledge. Further, that knowledge element applies to both the\n\nexistence of the dangerous condition and the likelihood that it will cause harm.\n\nAccordingly, the Academy may be liable only if Dr. Mihlbachler actually knew of\n\nthe existence of the sinkhole that caused Mr. Nelson’s injuries and that the sinkhole\n\nwas likely to cause harm.\n\n2. Willfulness Under Colorado Law\n\n We next consider the proper interpretation of “willful” under Colorado law.\n\nThe district court defined willful conduct as conduct taken “voluntarily, purposefully\n\n\n\n 4\n The Colorado Supreme Court has defined “objective facts” as those facts\n“that can be proven as false.” See, e.g., In re Green, 11 P.3d 1078, 1084 (Colo.\n2000).\n 10\n\fand with a conscious disregard for the consequences of the [conduct].” Nelson III,\n\n256 F. Supp. 3d at 1159 (quoting Hohn v. Morrison, 870 P.2d 513, 517 (Colo. App.\n\n1993)). In support, the district court cited Pettingell v. Moede, 271 P.2d 1038, 1042\n\n(Colo. 1954) (defining “[w]illful action” as “voluntary; by choice; intentional;\n\npurposeful”) and Hohn, 870 P.2d at 517 (relying on Black’s Law Dictionary to\n\nconclude that willful conduct means conduct done “voluntarily, purposefully, and\n\nwith a conscious disregard for the consequences of his or her conduct” and with “no\n\njustifiable excuse”) (emphasis omitted)) See Nelson III, 256 F. Supp. 3d at 1159. But\n\n“willfulness does not,” the district court concluded, “require that a government\n\nemployee be consciously aware that his acts or omissions create danger or risk to the\n\nsafety of others.” Id. at 1159–60.\n\n The Academy takes issue with the district court’s second statement that a\n\ngovernment employee need not be conscious of the consequences of his actions,\n\nclaiming that “conduct is ‘willful’ only if the landowner or its agent consciously\n\nexposed others to a substantial risk of injury.” Appellant’s Br. at 14. If “willful”\n\nincludes a risk-of-harm component here, however, it introduces surplusage because\n\nthe statute already explicitly includes such language. Under Colorado law, “[w]e\n\nmust give effect to the meaning, as well as every word[,] of a statute if possible.”\n\nBennett Bear Creek Farm Water & Sanitation Dist. v. City & Cty. of Denver ex rel.\n\nBd. of Water Comm’rs, 928 P.2d 1254, 1262 (Colo. 1996); see also In re Marriage of\n\nRooks, 429 P.3d 579, 599 (Colo. 2018) (declining to interpret one provision of a\n\nstatute in such a way as would render another provision of the statute “mere\n\n 11\n\fsurplusage”) (quoting Colo. Med. Bd. v. Office of Admin. Courts, 333 P.3d 70, 74\n\n(Colo. 2014); People v. Flenniken, 749 P.2d 395, 399 (Colo. 1988) (same); Antonin\n\nScalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174\n\n(2012) (explaining that no word or provision “should needlessly be given an\n\ninterpretation that causes it to duplicate another provision or to have no\n\nconsequence”). The Academy cites three Colorado Supreme Court cases in support of\n\nits position that “willful” conduct requires that the landowner consciously expose\n\nothers to a substantial risk of injury, but each is readily distinguishable. See\n\nAppellant’s Br. at 17–18 (discussing Crum v. Groce, 556 P.2d 1223, 1224 (Colo.\n\n1976) (interpreting a statute that does not include risk-of-harm language); United\n\nBlood Servs., a Div. of Blood Sys., Inc. v. Quintana, 827 P.2d 509, 523 n.10 (Colo.\n\n1992) (same); People v. Marcy, 628 P.2d 69, 78 (Colo. 1981) (interpreting a criminal\n\nstatute that provides its own definition of “willful”)).\n\n In Przekurat, the Colorado Supreme Court provides more analogous guidance.\n\nThere, contrasting “knowingly” with “willfully,” the court defined “willfully” as\n\n“one’s subjective intent to act on—or in spite of—[one’s] awareness” of objective\n\nfacts. 428 P.3d at 517. This more recent definition of “willful” under Colorado law\n\nsupports the definition provided in Hohn—“voluntarily, purposefully, and with a\n\nconscious disregard for the consequences of his or her conduct” and with “no\n\njustifiable excuse.” 870 P.2d at 517–18 (emphasis omitted). Thus, the Academy is\n\nliable for Mr. Nelson’s injuries if Dr. Mihlbachler purposefully or voluntarily failed\n\nto warn or guard with conscious disregard for the consequences of that failure. That\n\n 12\n\fis, if he had the subjective intent to fail to act despite actually knowing that there was\n\na sinkhole and it was likely to cause harm.\n\n Having defined the terms used in the CRUS exception, we now consider\n\nwhether the district court’s conclusion that the Nelsons’ claim falls within that\n\nexception is correct and supported by the district court’s findings.\n\n B. The District Court’s Findings and Conclusions\n\n The factual findings relevant to this analysis can be found in the district\n\ncourt’s initial decision granting relief on the grounds the CRUS did not apply, Nelson\n\nv. United States (“Nelson I”), 20 F. Supp. 3d 1108, 1114 (D. Colo. 2014), rev’d and\n\nremanded, Nelson II, 827 F.3d 927, and in its decision after remand holding the claim\n\nfalls within the CRUS exception, Nelson III, 256 F. Supp. 3d at 1136. After\n\nconsidering evidence described in Nelson I and Nelson III, the district court in Nelson\n\nIII found facts relevant to the two disputes in this appeal. It found that: (1) Dr.\n\nMihlbachler knew the sinkhole was a dangerous condition and (2) he acted willfully\n\nin failing to guard or warn against it.\n\n The Academy argues that the district court’s findings of fact in Nelson I and in\n\nNelson III cannot be squared with its ultimate conclusion in Nelson III that Dr.\n\nMihlbachler willfully failed to warn of or guard against the known dangerous\n\ncondition. In particular, the Academy argues, “The district court’s initial opinion\n\ncontained no suggestion that the Academy’s conduct was anything more than\n\nnegligent[] and contained no hint that the conduct might be malicious or willful.” Id.\n\nat 2, 9. And the Academy contends the district court’s “finding that the ‘thought never\n\n 13\n\foccurred’ to Dr. Mihlbachler that the damage to the path would create a safety\n\nhazard” precluded it from holding in favor of the Nelsons. Appellant’s Br. at 31.\n\nThese arguments sound like arguments about facts, but as noted above, the Academy\n\ndoes not dispute any of the district court’s factual findings. Accordingly, the\n\nAcademy’s arguments about contrary evidence are arguments that the district court\n\nmade legal errors. The district court’s knowledge finding would be legal error if the\n\ncourt relied on constructive rather than actual knowledge.5 Similarly, its willfulness\n\nfinding would be legal error if the court relied on an impermissible definition of\n\nwillfulness. In both instances, we conclude the district court did not commit legal\n\nerror. To illustrate why, we first examine the district court’s opinion in Nelson I. We\n\nthen review the opinion in Nelson III, focusing on the district court’s findings of fact\n\nand conclusions of law related to Dr. Mihlbachler.\n\n\n\n\n 5\n Conceivably, the district court could also commit legal error if its conclusion\nis not supported by the findings of fact. See United States v. Vega, 141 F.3d 1186\n(Table), 1998 WL 110433, at *2 (10th Cir. 1998) (describing such a challenge as\nraising a mixed question that we would review, in this context, de novo); State\nDistribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 412 & n.2 (10th Cir. 1984)\n(explaining “it is fundamental that a judgment cannot be sustained on appeal unless\nthe conclusion upon which it rests has support in one or more findings of fact” and\napplying “the more stringent standard of review accorded conclusions of law”).\nBecause our conclusion that the findings of fact support the district court’s\nconclusion that Dr. Mihlbachler, and thus the Academy, had actual knowledge of the\ndangerous condition, we need not separately consider this interpretation of the\nAcademy’s argument.\n\n 14\n\f1. Nelson I\n\n Appellants argue that: (1) Nelson I impermissibly conflicts with Nelson III and\n\n(2) Nelson III incorporates findings in Nelson I that are incompatible with the district\n\ncourt’s conclusion in Nelson III. We explain why the first argument fails and then\n\nexplain the factual findings in Nelson I before considering Nelson III.\n\n First, while it is true Nelson I did not find willful or malicious conduct, that\n\nquestion was not relevant to whether the Academy had directly or indirectly opened\n\nthe path for recreational use.6 On remand, the willfulness of the Academy’s conduct\n\nbecame the central issue, and the district court’s focus shifted accordingly. The court\n\nmade new findings of fact sufficient to support its conclusion that the CRUS\n\nexception is implicated. The district court was permitted to do this. See Hicks v.\n\nGates Rubber Co., 928 F.2d 966, 971 (10th Cir. 1991) (holding that when proceeding\n\non a general remand, the district court is free to decide any issues not foreclosed by\n\nthe appellate mandate); Otero v. Mesa Cty. Sch. Dist. No. 51, 628 F.2d 1271, 1272\n\n(10th Cir. 1980) (holding that the district court did not err by making additional\n\nfindings on remand without taking new evidence).7\n\n\n 6\n The Academy also finds it significant that the district court “never suggested\nthat plaintiffs could prevail under the standard applicable under the [CRUS] or the\nstandard applicable in cases involving trespassers.” Appellant’s Br. at 8 & n.3. But as\nthe district court concluded there that the CRUS did not apply and that Mr. Nelson\nwas an invitee or licensee, this is not surprising.\n 7\n See also V. G. Lewter, Power of Trial Court, on Remand for Further\nProceedings, to Change Prior Fact Findings as to Matter Not Passed Upon by the\nAppellate Court, Without Receiving Further Evidence, 19 A.L.R.3d 502 (1968) (“If\nthe lower court then [on remand] perceives an error in its own former proceedings,\n 15\n\f Second, we recount the district court’s findings in Nelson I. Relevant to our\n\ninquiry, are the undisputed findings that: “Dr Mihlbachler did not believe the path\n\nwas an official recreation trail, or that outside users were invited or permitted to use\n\nthe path for recreation,” 20 F. Supp. 3d at 1117, and “Dr. Mihlbachler did not believe\n\nthere was an urgent need to have the path repaired because it was on the CDOT and\n\nMVEA [Mountain View Electric Association] easement and was present for their\n\nuse,” id. The court then sets forth “Findings of Additional Fact,” based on the\n\nevidence at trial. Of relevance, those findings state: “Dr. Mihlbachler knew of the\n\nexistence and condition of the path.” Id. at 1122. “Dr. Mihlbachler had seen five or\n\nsix people use the path for walking, jogging, and biking prior to September 3, 2008.\n\nHe saw most of these people before 2005, when the Struthers Road was built. The\n\nconstruction of Struthers Road in 2005 provided an alternate route [through the area]\n\nso that people did not need to use the asphalt path.” Id. “Dr. Mihlbachler testified that\n\nthe condition of the asphalt path with the sinkhole which he observed before Mr.\n\nNelson’s accident would be a safety hazard for users of the path if it were an official\n\n[Academy] trail. Thus, if it were an official trail, he would have reported the\n\ncondition of the path to maintenance to get it repaired.” Id. (emphasis added). “He\n\nalso testified that he did not think the path was being used by pedestrians or bikers.\n\n\n\nsuch as inconsistent findings of fact and the like, not touched upon by the appellate\ncourt, there would appear to be no reason why it could not change its former findings\nto any extent not prohibited by the appellate court mandate, even if the change in\nfindings would result in the application of a different legal principle and a\ncorresponding change in the ultimate holding.”).\n 16\n\fThus, the thought never occurred to him that the damage to the path would create a\n\nsafety hazard.” Id. at 1122–23 (emphasis added). “Dr. Mihlbachler’s decision not to\n\ndo anything about the sinkhole on the path or report it to anyone was based on his\n\nperception that it was on the CDOT and MVEA easement for their use and was not\n\nthe responsibility of the Academy. It also was based on the fact that he did not think\n\npeople were using the path for recreational purposes.” Id. at 1123.\n\n On appeal, we reversed the district court’s determination that the CRUS was\n\ninapplicable, concluding instead that the Academy had indirectly made the asphalt\n\npath available for recreational use. Nelson II, 827 F.3d at 929. But we remanded for\n\nthe district court to consider in the first instance whether the claim fell within the\n\nCRUS exception. Id. at 933.\n\n2. Nelson III\n\n On remand, the district court “reviewed the entirety of the record and\n\nevidence, counsel’s arguments, the parties’ proposed findings of fact and conclusions\n\nof law, [its] previous Findings of Fact and Conclusions of Law, and Orders, and the\n\nTenth Circuit Order.” Nelson III, 256 F. Supp. at 1141. That review was focused on\n\nthe sole issue on remand—the CRUS exception—and the court made additional\n\nfindings of fact about each element of the CRUS exception. We consider the court’s\n\nfindings about the two elements at issue here: (1) knowledge and (2) willfulness. We\n\nconclude that the findings evince no legal error.\n\n\n\n\n 17\n\f a. Knowledge\n\n The district court ended its consideration of “[w]hether the United States\n\n[k]new of the [p]ath and the [d]angerous [c]ondition,” id. at 1152, by saying, “[T]he\n\nUnited States, including its representative Dr. Mihlbachler, knew that the path\n\nexisted, knew significant erosion problems existed in that area, and specifically knew\n\non August 20, 2008, two weeks before Mr. Nelson was injured, of the existence of\n\nthe dangerous condition on the path caused by erosion,” id. at 1155. We conclude the\n\ndistrict court’s factual finding is consistent with the CRUS exception’s requirement\n\nof actual knowledge.\n\n Before finding Dr. Mihlbachler knew of the dangerous condition, the district\n\ncourt recited contrary evidence. To begin, the court repeated many of the factual\n\nfindings from Nelson I. Id. at 1144. It then proceeded to catalog the relevant\n\nevidence, even when it appeared internally inconsistent. For example, the district\n\ncourt noted that Dr. Mihlbachler “testified that to his understanding there was no rule\n\nor regulation in the trail management plan or otherwise that would have required\n\nfixing a hole on an unofficial path such as the asphalt path” and that “the Academy’s\n\ntrail management plan contains guidelines about what constitutes a safe trail for the\n\nusers, and that ‘criteria would have applied in this situation [to the asphalt path] had\n\n[he] known that it was designed . . . as a trail.” Id. at 1147 (emphasis added). The\n\ndistrict court also noted that “Dr. Mihlbachler chose not to do anything about the\n\nsinkhole . . . based on his perception that it was on the CDOT and MVEA easement\n\nfor their use and was not the Academy’s responsibility,” id., and “the fact that he did\n\n 18\n\fnot think people were using the path for recreational purposes,” id. at 1148. As in\n\nNelson I, the district court summarized Dr. Mihlbachler’s testimony: “As he did not\n\nthink the path was being used by pedestrians or bikers, the thought never occurred to\n\nDr. Mihlbachler that the damage to the path would create a safety hazard. He did not\n\nthink that the hole was likely to cause anyone harm.” Id. at 1148.\n\n But Nelson III also referred to evidence that supported the district court’s\n\nultimate finding on knowledge, reiterating the Nelson I finding that Dr. Mihlbachler\n\n“saw members of the public use the path on five or six occasions,” and although\n\n“most” of those occasions were “before 2005,” some occurred after the installation of\n\nthe new Struthers Road in 2005. Id. Thus, the evidence and testimony expressed in\n\nthe “Findings of Fact” section are in tension and appear to be best understood as a\n\ncompilation of the relevant testimony.\n\n It is the district court’s “Conclusions of Law” that resolve this apparent\n\nconflict. The district court sifts through Dr. Mihlbachler’s testimony and provides the\n\ncourt’s reasons for discounting some of it. To illustrate, the conclusions state, “Dr.\n\nMihlbachler testified that the condition of the asphalt path with the sinkhole, which\n\nhe observed before Mr. Nelson’s accident, would be a safety hazard for users of the\n\npath—if it were an official Academy trail.” Id. at 1151 (emphasis added). The district\n\ncourt then rejects this testimony, explaining: “The fact that the path was not an\n\nofficial Academy trail, however, does not make it any less of a dangerous condition\n\nto the people using it for recreational purposes. Indeed, the evidence established that\n\nthe condition of the asphalt path with a sinkhole did not meet Academy safety\n\n 19\n\fstandards.” Id. Thus, while the district court’s findings accurately relate Dr.\n\nMihlbachler’s testimony regarding his motives and beliefs, the inclusion of those\n\nstatements cannot be read, as the Academy insists, as the district court’s imprimatur\n\nof their veracity.\n\n Instead, the district court found Dr. Mihlbachler knew the sinkhole was a\n\ndangerous condition by considering circumstantial evidence of his knowledge.\n\nColorado law permits this manner of proving knowledge. See Christoph v. Colo.\n\nCommc’ns Corp., 946 P.2d 519, 523 (Colo. App. 1997) (“[K]nowledge . . . may be\n\nproved either by direct evidence of actual knowledge, or by circumstantial\n\nevidence.”). Dr. Mihlbachler saw and photographed a sinkhole the parties agreed was\n\ndangerous. He knew people used the path for recreation. And a large and difficult-to-\n\nsee sinkhole on a paved path is dangerous even if few people travel the path. See\n\nTermini v. United States, 963 F.2d 1264, 1269 (9th Cir. 1992) (“That only two\n\nvehicles per day typically use the spur [road] seems to us much less important than\n\nthe fact that it abruptly terminates at a cliff.”). In other words, the danger was\n\nobvious enough to support the district court’s inference—sufficient to overcome Dr.\n\nMihlbachler’s testimony about lack of a hazard—that he actually knew the sinkhole\n\nwas dangerous and likely to cause harm.\n\n To be sure, the district court could have more precisely separated its actual\n\nfindings of fact from its recitation of the evidence and from its legal conclusions. But\n\nwe are not bound by the label attached by the district court. See, e.g., Hjelle v. Mid-\n\nState Consultants, Inc, 394 F.3d 873, 879 (10th Cir. 2005) (noting that the district\n\n 20\n\fcourt’s labels are “irrelevant for purposes of appeal”); Feartherstone v. Barash, 345\n\nF.2d 246, 250 (10th Cir. 1965) (noting that the requirement with regard to findings of\n\nfact and conclusions of law “are far from rigid and unworkable, or unadaptable to\n\npractical court administration”); Houck v. Hinds, 215 F.2d 673, 676 (10th Cir. 1954)\n\n(holding that the appellate court is not bound by the designation or finding or\n\nconclusion attached by the district court). Here, the Nelson III opinion relates the\n\nevidence in its findings of fact, including portions of the testimony that are in\n\nconflict, and then resolves that tension in its conclusions of law. Where we are able\n\nto understand the basis for the district court’s decision, we will not hold it to a “rigid\n\nand inflexible” standard. See Feartherstone, 345 F.2d at 250.\n\n b. Willfulness\n\n After concluding that Dr. Mihlbachler, and therefore the Academy, knew of\n\nthe dangerous condition, Nelson III, 256 F. Supp. at 1155, the district court turned to\n\nthe question of whether the failure to guard or warn was “willful.” It concluded that\n\ndespite any statements to the contrary, “Dr. Mihlbachler also knew, prior to\n\nSeptember 2008, that people had used the path for recreational purposes.”8 Id. at\n\n1161. The district court then provided a detailed three-part analysis of its conclusions\n\nregarding the Academy’s willful failure to guard or warn.\n\n\n\n\n 8\n This finding is contrary to the Academy’s position that “[t]he court did not\nfind that any of the employees who were aware of the path’s use were also aware of\nthe sinkhole.” Appellant’s Br. at 10.\n 21\n\f First, noting that “[t]he Academy’s knowledge and failure to act regarding the\n\npath must be considered in conjunction with Dr. Mihlbachler’s actions or failures to\n\nact,” the district court reiterated Dr. Mihlbachler’s responsibility for investigating the\n\nsubstantial erosion problems and his discovery of the dangerous condition caused by\n\nthe sinkhole. Id. at 1162.\n\n Second, the court reaffirmed that “Dr. Mihlbachler and the Academy did\n\nnothing . . . to warn the public of the sinkhole/washout or to guard against the danger\n\nof erosion that caused the sinkhole.” Id. In doing so, the district court expressly\n\nrejected Dr. Mihlbachler’s purported rationale for failing to act:\n\n Dr. Mihlbachler acknowledged that if the path had been an official Academy\n trail, the condition of the asphalt path that he observed would be a safety\n hazard for users of the path and he would have reported the condition of the\n path immediately to maintenance to get it repaired. The fact that the Academy\n had not officially designated it as an official trail does not, however, make it\n less dangerous to the public. Similarly. the fact that Dr. Mihlbachler thought\n the trail was to be maintained by CDOT and MVEA does not make it any less\n dangerous. . . . Yet, Dr. Mihlbachler consciously chose not to do anything or\n tell anyone about the sinkhole because he felt it was not a high priority relative\n to all the other erosion issues that he was dealing with along the eastern\n boundary.\n\nId. at 1163 (emphasis added).\n\n Third, after explaining its reasons for finding Dr. Mihlbachler’s contrary\n\nassertions implausible, the district court concluded: “Dr. Mihlbachler acted\n\n‘voluntarily, intentionally, and with a conscious disregard for the consequences of the\n\nact’ when he chose not to make the sinkhole a priority or to do anything to warn\n\nabout it or guard against its danger.” Id. That is, the court concluded that Dr.\n\nMihlbachler acted willfully.\n\n 22\n\f The district court rejected the Academy’s argument that Dr. Mihlbachler “did\n\nnot actually ‘know’ that the sinkhole posed a danger . . . as he did not believe anyone\n\nwas still using the path for recreational purposes . . . .” Id. Again noting that Dr.\n\nMihlbachler had seen people using the path for recreational purposes, the court\n\nstressed that “there is no evidence that he thought something had been done to\n\nsubsequently preclude its use.” Id. at 1164. Considering all the objective facts known\n\nto Dr. Mihlbachler, the district court also concluded that “a reasonable person would\n\nbelieve the sinkhole would be dangerous to anyone using the path for recreational\n\npurposes, and specifically, bicycling—where a person may not be able to see the\n\nsinkhole in time to stop.” Id.\n\n The Academy takes issue with this conclusion, claiming it reflects the\n\nimproper use of a constructive knowledge standard: “The district court determined\n\nthat it was sufficient to establish liability that a reasonable person in Dr.\n\nMihlbachler’s position would have appreciated that a recreational user might\n\neventually use the path and that the sinkhole would create a dangerous condition for\n\nsuch a user.” Appellant’s Br. at 32. This misconstrues the district court’s analysis.\n\nFirst, the district court found that Dr. Mihlbachler was actually aware of recreational\n\nuse. Nelson III, 256 F. Supp. at 1161. Second, the district court considered the\n\nreasonableness of Dr. Mihlbachler’s ignorance as one factor relevant to its analysis of\n\nwhether Dr. Mihlbachler’s testimony is believable and thus, whether he in fact had\n\nactual knowledge.\n\n\n\n 23\n\f Indeed, Nelson III continues by noting further concerns about Dr.\n\nMihlbachler’s veracity: “Dr. Mihlbachler’s testimony that he did not do anything\n\nabout the sinkhole based on his perception that it was on the CDOT and MVEA\n\neasement and was not the responsibility of the Academy is inconsistent with his\n\ntestimony that he took no action because it was not a high priority relative to all the\n\nother erosion issues that he was dealing with,” his understanding that he had the\n\ndiscretion to fix the path, and “his testimony that if he had been aware of the ‘Bicycle\n\nPath’ sign on the path or that it was a recreational trail that was getting used, he\n\nwould have either removed the path because it did not fit with the official Trails\n\nManagement Plan” or taken “the proper action to prevent a safety hazard.” Id. at\n\n1164–65. The court also found suspect Dr. Mihlbachler’s claim that he “thought the\n\npath belonged to MVEA or CDOT,” yet “didn’t see any urgency to have the hole\n\nrepaired by them or by the Air Force Academy.” Id. at 1164. The clear import of the\n\ndistrict court’s decision is that it did not believe Dr. Mihlbachler: “Dr. Mihlbachler’s\n\ntestimony that he took no action in regard to the sinkhole because he thought it was\n\nCDOT’s and/or MVEA’s responsibility is . . . not credible.” Id. at 1165. And those\n\nconcerns were pervasive. The district court concluded, “Dr. Mihlbachler knew that\n\nhe, as the Academy agent, could take action to fix the sinkhole or make it safe,\n\nregardless of whether the sinkhole was on [the] CDOT or MVEA easement,” and the\n\ncourt could also see “no reason” Dr. Mihlbachler could not have contacted CDOT or\n\nMVEA about the sinkhole. Id.\n\n\n\n 24\n\f Based on its careful review of the evidence on remand, the district court\n\nconcluded: “[T]he Academy and Dr. Mihlbachler, its agent, willfully ignored the\n\ndangerous condition on the path and chose not to take any steps to warn or guard\n\nusers like Mr. Nelson against that danger.” Id. And it further concluded that, even\n\nconsidering his actions in isolation, “Dr. Mihlbachler acted willfully in failing to\n\nwarn or guard against a known dangerous condition likely to cause harm.” Id.\n\n The district court’s conclusion is adequately supported by its findings and\n\nconsistent with Colorado law. Thus, the CRUS exception applies. And because Dr.\n\nMihlbachler’s knowledge and conduct are properly imputed to the Academy as his\n\nemployer, the Nelsons may recover against the Academy.\n\n C. Justifiable Excuse\n\n The Academy’s final argument is that Dr. Mihlbachler could not have failed\n\nto warn or guard willfully because his good-faith belief that CDOT was responsible\n\nfor the maintenance of the path provided a justifiable excuse for inaction. Assuming,\n\nwithout deciding, that “willful” under Colorado law requires the absence of a\n\njustifiable excuse, we conclude that Dr. Mihlbachler did not have one. As discussed,\n\nthe district court expressly found incredible Dr. Mihlbachler’s testimony that he\n\nchose not to do anything about the sinkhole because he thought it was on the CDOT\n\neasement. Id. In addition, the Academy has cited to no authority—and has made only\n\nconclusory arguments—to support its claim that a landowner’s good-faith belief that\n\nsomeone else is responsible for a dangerous condition on its land provides a\n\n\n\n 25\n\fjustifiable excuse for inaction. Neither the statutory requirements nor common sense\n\nfavor the Academy’s claim.\n\n Under the CRUS, a landowner is liable where it actually knows of a dangerous\n\ncondition likely to cause harm and purposefully fails to warn or guard against such\n\ndanger despite that knowledge. See Colo. Rev. Stat. § 33-41-104(1)(a); Przekurat,\n\n428 P.3d at 517. Nothing in the CRUS exempts such liability simply because another\n\nparty is responsible for the dangerous condition; the duty to warn or guard against the\n\ndanger remains in effect. A landowner who decides not to act in the face of a known\n\ndanger because it believes someone else is responsible for the maintenance of its land\n\ndoes not fail to act any less purposefully than does the landowner who decided not to\n\nact because it did not consider the danger “a high priority.” See Nelson III, 256 F.\n\nSupp. 3d at 1148.\n\n Further, even if Dr. Mihlbachler were correct that CDOT, not the Academy,\n\nwas obligated to repair the sinkhole, he did nothing to alert CDOT about the\n\nsinkhole. Cf. Baughman v. Cosler, 459 P.2d 294, 298 (Colo. 1969) (holding that a\n\nlandlord who “fails to disclose to his lessee any condition . . . which involves\n\nunreasonable risk of physical harm to persons on the land, is subject to liability to the\n\nlessee and others . . . for physical harm caused by the condition” if, among other\n\nthings, the landlord “has reason to expect that the lessee will not discover the\n\ncondition or realize the risks” (quoting Restatement (Second) of Torts § 358 (Am.\n\nLaw. Inst. 1965)); see also Palmer v. Alltel N.Y., Inc., 643 N.Y.S.2d 792, 792 (1996)\n\n(holding that, despite property being subject to an easement, landowner has\n\n 26\n\f“nondelegable duty” to third parties); Hartman v. Walkertown Shopping Ctr., Inc.,\n\n439 S.E.2d 787, 791 (N.C. Ct. App. 1994) (holding that land owner had duty to warn\n\nof unsafe conditions in easement-controlled area).\n\n Even assuming such a defense is available, the Academy has failed to provide\n\na justifiable excuse for its willful failure to guard or warn against the likely harm\n\nposed by the sinkhole.\n\n III. CONCLUSION\n\n We AFFIRM the district court’s decision.\n\n\n\n\n 27", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367004/", "author_raw": "McHUGH"}]}	MATHESON	PHILLIPS	MCHUGH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589751/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,803	Anupama BEKKEM, Plaintiff-Appellant, v. Robert WILKIE, Secretary, U.S. Department of Veterans Affairs, Defendant-Appellee.	Bekkem v. Wilkie	2019-02-12	17-6186	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Lucero, McKay, Matheson", "parties": "", "opinions": [{"author": "McKAY", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n PUBLISH February 12, 2019\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\n ANUPAMA BEKKEM,\n\n Plaintiff - Appellant,\n\n v. No. 17-6186\n\n ROBERT WILKIE, Secretary, U.S.\n Department of Veterans Affairs,\n\n Defendant - Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE WESTERN DISTRICT OF OKLAHOMA\n (D.C. No. 5:14–CV–00996–HE)\n\n\nAmber L. Hurst (Mark Hammons with her on the reply brief), of Hammons, Gowens &\nHurst, Oklahoma City, Oklahoma, for Plaintiff-Appellant.\n\nScott Maule, Assistant U.S. Attorney (Robert J. Troester, Acting U.S. Attorney, and Tom\nMajors and Daniel J. Card, Assistant U.S. Attorneys, with him on the brief), Oklahoma\nCity, Oklahoma, for Defendant-Appellee.\n\n\nBefore LUCERO, McKAY, and MATHESON, Circuit Judges.\n\n\nMcKAY, Circuit Judge.\n\n\n\n \n Current Secretary Robert Wilkie has been automatically substituted for the prior\nSecretary pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure.\n\f Plaintiff Anupama Bekkem brought this action against her employer, the\n\nDepartment of Veterans Affairs, based on numerous instances of discrimination and\n\nretaliation she allegedly experienced while working as a primary care physician for the\n\nVA in the Oklahoma City area. The district court dismissed some of her claims under\n\nRule 12(b)(6) and granted summary judgment in favor of Defendant on the remaining\n\nclaims. On appeal, Plaintiff seeks reversal of the district court’s ruling as to four of her\n\nclaims, all of which arise under Title VII of the Civil Rights Act of 1964: (1) gender\n\ndiscrimination based on unequal pay; (2) retaliation based on the VA’s choice of a\n\ndifferent physician to fill a medical director position after Plaintiff had made protected\n\ncomplaints of discrimination; (3) retaliation based on a written reprimand she received\n\nafter sending an email complaining of discrimination in physician pay; and (4)\n\ndiscrimination because of race, sex, color, national origin, and/or religion based on the\n\nsame written reprimand. The first three of these claims were disposed of on summary\n\njudgment; the final claim was dismissed under Rule 12(b)(6) for failure to state a\n\nplausible claim for relief.\n\n I.\n\n Because Plaintiff raises a claim regarding her pay, it is necessary as an initial\n\nmatter to briefly describe how VA physicians’ pay is calculated. The salaries of VA\n\nphysicians are “governed by a complex scheme of statute, regulation, VA handbooks, and\n\ninternal agency guidance and rules.” (Appellant’s App. at 366.) A VA physician’s\n\n -2-\n\fannual salary includes three components: (1) base pay, which is determined solely by “the\n\nphysician’s length of service with the VA”; (2) market pay, which is based on an\n\nindividualized assessment of several factors including the physician’s experience and\n\naccomplishments, the needs of the facility where the physician is assigned, and the\n\napplicable healthcare labor market for the physician’s specialty or assignment; and (3)\n\nperformance pay, which is based on the achievement of performance objectives set by\n\nmanagement and may not exceed the lower of $15,000 or 7.5% of the physician’s\n\ncombined base pay and market pay. (Id. at 367.) See 38 U.S.C. § 7431. A physician may\n\nalso receive an additional discretionary payment of retention pay, relocation pay, and/or\n\nrecruitment pay in certain circumstances. (Appellant’s App. at 367-68.)\n\n Under the applicable statute and VA policy, a physician’s market pay should be\n\nreviewed at least once every two years by a compensation panel, which makes salary\n\nrecommendations to the medical director of the regional VA healthcare system.\n\n38 U.S.C. § 7431(c)(5); (Appellant’s App. at 368-69). The regional medical director is\n\nthe ultimate decisionmaker on the question of physician pay and may thus accept, reject,\n\nor alter the compensation panel’s recommendations. Compensation panels are composed\n\nof a diverse group of men and women from different medical services. These panels meet\n\nweekly, and the particular panel members participating in each week’s review may vary.\n\nCompensation panels do not review all VA physicians’ market pay at the same time, but\n\nrather conduct individual pay reviews that “tend to be spread out due to scheduling\n\n\n -3-\n\fdemands, efficiency, and need.” (Appellant’s App. at 369.)\n\n Plaintiff began working for the VA healthcare system in 2006. Following a\n\ncompensation panel review, she received a market pay increase in May 2009. On\n\nJanuary 1, 2011, the federal government instituted a pay freeze that would last for three\n\nyears. Due to the freeze, VA officials were instructed that market pay adjustments to\n\nphysicians’ salaries could only be granted “under exceptional circumstances.” (Id. at\n\n565.) Given this guidance, the regional Oklahoma City VA network “did not always\n\nconduct pay panel reviews within the obligatory two-year period, because management\n\nfelt there was no reason if there could effectively be no change to market salaries.” (Id. at\n\n370.) Both male and female doctors from various medical services did not receive timely\n\nbiennial compensation panel reviews during the pay freeze. The VA presented evidence\n\nthat, due to the staggered nature of the biennial compensation reviews, “those physicians\n\nwho received a compensation panel review closest to the implementation of the pay\n\nfreeze tended to have higher market pay,” while those—like Plaintiff—whose last review\n\nhad occurred further before the pay freeze “tended to have their lower pre-review salary\n\nlocked in for the full three years of the pay freeze, which resulted in some pay\n\ndiscrepancies in all of the various services.” (Id.) Moreover, the competitive labor\n\nmarket and the fact that newly hired physicians were not locked in to an existing salary\n\nmeant that newly hired physicians were sometimes brought in at salaries that exceeded\n\nmany of the longer-term physicians’ salaries, contributing to the pay discrepancies across\n\n\n -4-\n\fthe various medical services. According to the VA’s uncontested expert evidence,\n\n“[t]here [wa]s no statistically significant difference in the . . . market pay of female and\n\nmale primary care physicians” employed in the regional VA healthcare system throughout\n\nthe relevant time period. (Id. at 378.)\n\n Plaintiff’s supervisor—a physician who supervised Plaintiff first as the Medical\n\nDirector of Primary Care and then as the Chief of Ambulatory Care—initiated a pay\n\nreview for Plaintiff in 2012, during the pay freeze. He did not participate in her\n\ncompensation panel review, which occurred in July 2012 and recommended only an\n\nincrease in base pay. In accordance with the compensation panel’s recommendation and\n\nthe guidance given to VA management officials regarding implementation of the pay\n\nfreeze, the regional medical director approved an increase of $3,267 in Plaintiff’s base\n\npay but did not adjust her market pay.\n\n In September 2012, Plaintiff transferred from the main VA clinic in Oklahoma\n\nCity to a satellite clinic office that the parties refer to as the North May clinic. In early\n\n2013, Plaintiff began having problems with a registered nurse who had recently been\n\nassigned to her four-person team at the North May clinic. Their relationship deteriorated\n\nto the point that each of them contacted an Equal Employment Opportunity counselor in\n\nMay 2013 to complain of a hostile work environment. In her May 2013 contact with the\n\nEEO, Plaintiff asserted that she had been subjected to a hostile work environment and\n\ndiscrimination based on her “sex (female), National Origin (India), race (Asian-Indian),\n\n\n -5-\n\fcolor (Brown), [and] religion (Hindu).” (Id. at 72.)\n\n On August 8, 2013, Plaintiff’s supervisor sent an email to several VA physicians,\n\nincluding Plaintiff, about the shifts they needed to fill at a regional clinic that had recently\n\nlost two primary care physicians. The attached schedule indicated that Plaintiff’s\n\nsupervisor was scheduled to spend four days working at the clinic, while Plaintiff was\n\nscheduled for a single day there. Plaintiff responded to her supervisor’s email with her\n\nown lengthy email, sent on August 19, 2013, in which she asserted that she should not be\n\nrequired to “cover at [the clinic] because you in the physician management[] couldn’t do\n\nyour jobs right.” (Id. at 485.) She stated, “You all can fix your mess-ups by going to [the\n\nclinic] yourself and taking care of the patients there. . . . Since I didn’t get a $50,000 raise\n\nlike you did, I don’t think I should be the one to fix your mistakes.” (Id.) She further\n\nstated that she had “turned down an extra $13,000 for weekend ER coverage” and was\n\nunwilling to now accept an increase in her work load with no compensation. (Id.)\n\nPlaintiff copied several VA health-care providers in her response to her supervisor and\n\nthen forwarded her response to numerous other VA employees as well.\n\n Plaintiff continued to have problems with the nurse assigned to her team at the\n\nNorth May clinic, and on August 27, 2013, her supervisor sent her an email informing her\n\nthat the physician management had decided to separate her from the “dysfunctional\n\nenvironment” in her team by transferring her back to the main VA facility in Oklahoma\n\nCity as of August 29, 2013. (Id. at 490.) Plaintiff responded with an email, also sent on\n\n\n -6-\n\fAugust 27, 2013, which she again forwarded to numerous other VA employees. In this\n\nemail, she complained about the way her supervisor and other management officials had\n\nhandled the conflict between Plaintiff and the nurse on her team. She complained that\n\nthis nurse was “lazy and vindictive,” described her as an insubordinate liar, and accused\n\nVA managers, particularly her supervisor, of various types of wrongdoing. (Id. at\n\n489–90.) Plaintiff then stated that she would be proceeding with a formal EEO\n\ncomplaint.\n\n Approximately thirty minutes after sending this email, still on the evening of\n\nAugust 27, 2013, Plaintiff sent another email to numerous VA employees, including her\n\nsupervisor and other management officials. This email was entitled “Information\n\nreceived by filing a FOIA request related to my EEO action related to Ambulatory Care\n\nPhysic[i]ans’ pay.” (Id. at 492.) In this email, Plaintiff explained that she had filed a\n\nFreedom of Information Act request to obtain the salary data of physicians employed by\n\nthe VA regional network in Oklahoma City, which she was attaching to her email for her\n\ncolleagues to consider. She suggested that the other physicians review this data and draw\n\ntheir own conclusions, and she listed some of the conclusions she had drawn. For\n\ninstance, she had concluded that “[f]emales seem to be paid less than males” and, “[i]n\n\ngeneral, Foreign Born or non-white physicians make less than white physicians.” (Id.)\n\nShe also observed that one male doctor had apparently been paid for two years while he\n\nwas away pursuing a fellowship, and she asked: “I wonder how we too can get this\n\n\n -7-\n\fawesome deal? Maybe some money changed hands to make this happen?” (Id.) She\n\nadvised her colleagues to “[r]eview the data at your leisure and figure out your worth to\n\nthe organization.” (Id.)\n\n In a letter dated August 27, 2013, Plaintiff’s supervisor informed her that he was\n\nproposing a reprimand for inappropriate conduct. He specified three reasons for the\n\nproposed reprimand:\n\n Specification 1: On or about August 27, 2013 you exhibited inappropriate\n conduct in an email that you sent to me and multiple other employees. In\n the email you stated to me, among other things, “I was already a US citizen\n the day I started at this job, unlike you who used the VA to get your visa\n paperwork done. . . . [The nurse] is lazy and vindictive. . . . The physician\n management has no backbone, and all you are interested in is dumping\n work on the rank and file, and padding your paychecks. . . .”\n\n Specification 2: On or about August 19, 2013 you exhibited inappropriate\n conduct in an email that you sent to me and multiple other employees. In\n the email you stated to me, among other things, “So we have to cover at [the\n other clinic] because you in the physician management, couldn’t do your\n jobs right. . . . So how come you need us to help you now, with something\n you and the rest or [sic] leadership team messed up? You all can fix your\n mess-ups by going to [the clinic] yourself and taking care of the patients\n there. . . .”\n\n Specification 3: On or about August 27, 2013 you sent an inappropriate\n email to several employees who you labeled “Colleagues.” In the email you\n alleged various complaints regarding the pay of physicians at this facility.\n In your email you made an allegation by stating, “Maybe some money\n changed hands to make this happen?”\n\n(Id. at 483 (most alterations in original).) On September 30, 2013, after considering\n\nPlaintiff’s response to the proposed reprimand, the Chief of Staff—Plaintiff’s second-line\n\nsupervisor—issued a reprimand for the same reasons stated in the proposed reprimand.\n\n -8-\n\fPlaintiff was informed that a copy of the reprimand would be placed in her electronic\n\nOfficial Personnel Folder and that “any future offenses or violations of rules for which\n\ndisciplinary action would be appropriate could result in a more severe penalty, up to and\n\nincluding removal.” (Id. at 495.)\n\n Plaintiff filed a formal EEO complaint on September 5, 2013, and an amended\n\ncomplaint on November 21, 2013. In her amended EEO complaint, she not only\n\nreiterated her previous complaints of discrimination and a hostile work environment, but\n\nalso claimed retaliation on numerous grounds, including her receipt of a reprimand while\n\nher informal EEO complaint was pending.\n\n The pay freeze ended on December 31, 2013, and Plaintiff’s supervisor soon\n\nthereafter recommended a compensation panel review and pay raise for Plaintiff. The\n\ncompensation panel reviewed her pay in March and April of 2014 and recommended two\n\ndifferent raises that together increased Plaintiff’s market pay (and thus her total pay) by\n\nmore than $20,000. Plaintiff’s supervisor participated in both of these favorable\n\ncompensation panel reviews. The regional director approved the compensation panel’s\n\nrecommendations, and thus Plaintiff received the recommended increase of more than\n\n$20,000 to her total salary soon after the pay freeze ended.\n\n Plaintiff filed this federal lawsuit in September 2014, alleging discrimination and\n\nretaliation based on numerous allegedly improper actions taken by her employer. As\n\npertinent here, she alleged that her pay was lower than other comparable physicians’ pay\n\n\n -9-\n\fbecause of her gender and/or other protected characteristics and that the reprimand she\n\nreceived in September 2013 was based on discriminatory and/or retaliatory motives.\n\n In November 2014, the VA posted a job opening for a position as the medical\n\ndirector of the North May clinic where Plaintiff had worked from September 2012\n\nthrough August 2013. The clinic had not previously had an official medical director, but\n\na primary care physician who worked at this clinic had been volunteering as a liaison or\n\nlead physician, carrying out all the responsibilities that the new medical director position\n\nwould entail, since September 2012. Plaintiff’s supervisor was responsible for making\n\nthe hiring decision for this position, and he received applications from only two\n\napplicants who met the minimal qualifications required to serve as the medical director\n\nfor the North May clinic: the physician who had already in essence been acting as the\n\nmedical director of the clinic for the past two years in his volunteer role as lead physician,\n\nand Plaintiff. In January 2015, each candidate was interviewed by a panel of medical\n\nproviders. Each member of the panel scored the North May clinic lead physician higher\n\nthan Plaintiff. Plaintiff afterwards complained to her supervisor that the panel members\n\nhad asked her about her prior EEO activity. He accordingly disregarded the results of\n\nthese interviews and requested a second panel to be constituted of “four individuals (men\n\nand women) who were not believed to have knowledge of Plaintiff’s EEO complaint, and\n\nan H.R. representative.” (Id. at 361; 584–85.) This second panel interviewed both\n\ncandidates, and again each panel member gave the lead physician higher scores than\n\n\n -10-\n\fPlaintiff. Plaintiff’s supervisor then conducted his own interviews of each candidate and\n\nselected the North May lead physician to fill the new medical director position. Plaintiff\n\nwas informed that she had not been selected for this position on March 23, 2015.\n\n Also in March 2015, the district court dismissed several of the discrimination\n\nclaims in Plaintiff’s complaint under Rule 12(b)(6) for failure to state a claim upon which\n\nrelief could be granted. The court held that the only claim of discrimination which stated\n\na plausible claim for relief was Plaintiff’s claim of unequal pay based on her gender. All\n\nof Plaintiff’s other claims of discrimination, including her claim of race, sex, color,\n\nnational origin, and/or religious discrimination based on the reprimand she received,\n\nfailed to state a plausible claim for relief because “‘there is nothing other than sheer\n\nspeculation to link’” the complained-of acts “‘to a discriminatory motive.’” (Id. at 94\n\n(quoting Khalik v. United Air Lines, 671 F.3d 1188, 1194 (10th Cir. 2012) (ellipsis\n\nomitted)).) With the exception of her gender pay claim, Plaintiff’s complaint simply\n\n“contain[ed] no facts from which it c[ould] be inferred that defendants [discriminated\n\nagainst her] because of a protected characteristic.” (Id.)\n\n Plaintiff filed an amended complaint to attempt to address these deficiencies, but\n\nthe district court held that her conclusory assertion that “[o]ther physicians, who did not\n\nshare in [her] protected characteristics” were treated differently was insufficient to\n\nsupport the inference that the VA discriminated against her based on her membership in a\n\nparticular protected class. (Id. at 194.)\n\n\n -11-\n\f In October 2015, Plaintiff filed a second amended complaint, adding a new claim\n\nof retaliation based on the VA’s decision not to hire her for the medical director position\n\nat the North May clinic.\n\n The district court ultimately granted summary judgment in favor of Defendant on\n\neach claim raised in the second amended complaint, holding that the facts, taken in the\n\nlight most favorable to Plaintiff, demonstrated that Defendant was entitled to judgment as\n\na matter of law on each claim.\n\n Plaintiff appeals the district court’s entry of summary judgment as to three of the\n\nclaims included in her second amended complaint: (1) gender discrimination under Title\n\nVII of the Civil Rights Act based on unequal pay; (2) retaliation under Title VII based on\n\nher non-selection for the North May medical director position; and (3) retaliation under\n\nTitle VII based on the September 2013 reprimand. She also appeals the district court’s\n\nearlier dismissal of her claim of Title VII discrimination based on the same reprimand.\n\n II.\n\n We review the district court’s entry of summary judgment de novo, applying the\n\nsame standards as the district court. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670\n\n(10th Cir. 1998). We also review de novo the district court’s dismissal of a claim under\n\nRule 12(b)(6). Khalik, 671 F.3d at 1190. “Our review of each of the district court’s\n\nrulings requires us to view the allegations and evidence in the light most favorable to\n\n[Plaintiff as] the non-movant.” Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.\n\n\n -12-\n\f1998).\n\n To survive summary judgment on a Title VII claim of discrimination based on\n\nrace, color, religion, sex, or national origin, a plaintiff must present either direct evidence\n\nof discrimination or indirect evidence that satisfies the burden-shifting framework of\n\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Khalik, 671 F.3d at 1192.\n\nUnder the McDonnell Douglas framework, a plaintiff must first “raise a genuine issue of\n\nmaterial fact on each element of the prima facie case, as modified to relate to differing\n\nfactual situations.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation\n\nomitted). The burden then “shifts to the employer to offer a legitimate nondiscriminatory\n\nreason for its employment decision.” Id. If the employer does so, “the burden then\n\nreverts to the plaintiff to show that there is a genuine dispute of material fact as to\n\nwhether the employer’s proffered reason for the challenged action is pretextual—i.e.,\n\nunworthy of belief.” Id. (internal quotation marks omitted).\n\n A claim of Title VII retaliation can likewise be proven either by direct evidence or\n\nby reliance on the McDonnell Douglas framework. Khalik, 671 F.3d at 1192. To state a\n\nprima facie Title VII retaliation claim, “a plaintiff must show (1) that she engaged in\n\nprotected opposition to discrimination, (2) that a reasonable employee would have found\n\nthe challenged action materially adverse, and (3) that a causal connection existed between\n\nthe protected activity and the materially adverse action.” Id. at 1193 (internal quotation\n\nmarks and brackets omitted).\n\n\n -13-\n\f We begin by addressing Plaintiff’s claim of gender discrimination based on\n\nunequal pay. As an initial matter, it is important to note the scope of this claim. First,\n\nthis claim is based solely on the time period between September 2011 and March 2014, a\n\nperiod which corresponds with the federal pay freeze for all but the last three months.\n\nSecond, this claim is limited to the market pay component of Plaintiff’s total salary and\n\ndoes not include any claims relating to base pay, performance pay, or any other aspects of\n\nher compensation. Finally, Plaintiff’s claim of pay discrimination is based entirely on the\n\nactions of her supervisor, who she alleges held discriminatory bias against women.\n\nSpecifically, she contends that her supervisor caused her to receive lower pay than male\n\nVA physicians by failing to recommend an earlier compensation panel review of her\n\nsalary during the pay freeze and/or by failing to recommend that her market pay be\n\nincreased during this time period. She does not allege—and has presented no evidence to\n\nsuggest—any discrimination on the part of the compensation panel that reviewed her pay\n\nin 2012 or any of the regional directors who were the ultimate decisionmakers on the\n\nquestion of her pay.\n\n Because Plaintiff has presented no direct evidence of discrimination, we analyze\n\nher claim under the burden-shifting McDonnell Douglas framework. At the first step of\n\nthis analysis, we assume without deciding that Plaintiff has presented sufficient evidence\n\nto establish a prima facie case of pay discrimination. At the second stage of this analysis,\n\nthe VA has come forward with a legitimate, non-discriminatory reason that Plaintiff’s pay\n\n\n -14-\n\fwas lower during the relevant time period than many other VA physicians (both male and\n\nfemale) with comparable experience—due to the timing of the federal pay freeze in\n\nconjunction with the biennial pay review process, the market pay component of Plaintiff’s\n\nsalary was frozen at an amount fixed in May 2009, while many other physicians’ pay was\n\nfrozen at a higher amount that had been fixed at a later date. The VA has also explained\n\nthat there were two exceptions to the freeze in market pay increases: (1) some physicians\n\nreceived a market pay increase, with a corresponding increase in their total salary,\n\nbecause they took on additional duties during the pay freeze; and (2) a new accounting\n\npolicy caused certain other types of pay (specifically, relocation, recruitment, and\n\nretention pay) to be recharacterized as market pay, thus increasing the market pay\n\ncomponent of some physicians’ salaries without affecting the total compensation they\n\nreceived. Neither of these exceptions was applicable to Plaintiff—or to a number of other\n\nVA physicians—because she did not take on additional job duties during the pay freeze,\n\nand she had not been receiving any of the types of pay that were recharacterized as\n\n“market pay” during the freeze. Finally, the VA has explained that, because market pay\n\ncould not be increased during the pay freeze unless one of these two exceptions applied,\n\nVA officials “did not always conduct pay panel reviews within the obligatory two-year\n\nperiod, because management felt there was no reason if there could effectively be no\n\nchange to market salaries,” and thus “[b]oth males and females, in many different services\n\n. . . , did not receive timely [biennial] compensation panel review.” (Appellant’s App. at\n\n\n -15-\n\f370.) The VA’s proffered evidence of these non-discriminatory reasons for the pay\n\nsituation during the federal pay freeze is sufficient to meet its “exceedingly light burden,”\n\nMontes v. Vail Clinic, Inc., 497 F.3d 1160, 1173 (10th Cir. 2007) (internal quotation\n\nmarks omitted), at the second stage of the McDonnell Douglas analysis.\n\n Thus, the burden now reverts back to Plaintiff to establish pretext. To show that\n\nthe VA’s proffered gender-neutral reasons for Plaintiff’s delayed compensation panel\n\nreview and lack of a market pay increase during the pay freeze were pretextual, Plaintiff\n\nmust show that the proffered reasons “were so incoherent, weak, inconsistent, or\n\ncontradictory that a rational factfinder could conclude the reasons were unworthy of\n\nbelief.” Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (quoting Stover v.\n\nMartinez, 382 F.3d 1064, 1076 (10th Cir. 2004)). “Mere conjecture that the employer’s\n\nexplanation is a pretext for intentional discrimination is an insufficient basis for denial of\n\nsummary judgment.” Morgan, 108 F.3d at 1323 (internal quotation marks and brackets\n\nomitted).\n\n Plaintiff first argues that the VA’s explanation is false because male physicians\n\nreceived market pay increases during the pay freeze even when they did not take on\n\nadditional job duties or have other components of their pay recharacterized as market pay.\n\nPlaintiff’s only evidence in support of this argument is the pay stub of one male physician\n\nwho she contends did not fall into either of the VA’s asserted exceptions to the pay freeze\n\nbecause his pay stub shows that he received an increase in both market pay and total\n\n\n -16-\n\fsalary despite the fact that he remained assigned to general internal medicine at the time\n\nof the salary increase. Notably, however, this pay stub in fact indicates that this physician\n\nreceived a “change in assignment” warranting a pay increase even though he kept\n\nworking in general internal medicine (Appellant’s App. at 711), which appears to be\n\nentirely consistent with the Chief of Ambulatory Care’s explanation that this physician\n\nreceived higher market pay because, “in addition to and outside his Monday through\n\nFriday primary care working hours,” he “performs specialized duties such as\n\ncompensation and pension exams and environmental exams for Agent Orange patients”\n\n(id. at 364). Plaintiff has presented no other evidence to support her contention that male\n\nphysicians received market pay increases outside the two exceptions identified by the VA,\n\nand we are persuaded that the pay stub is insufficient to create a material dispute of fact\n\non this point.\n\n Second, Plaintiff argues that a jury could find pretext because the VA’s\n\nexplanations have been inconsistent. She contends that the VA first stated that market\n\npay could only be increased if physicians took on additional job duties, but later added a\n\nnew purported reason for market pay increases by mentioning that other components of\n\npay were recharacterized as market pay during the pay freeze. This argument is based\n\nsolely on Plaintiff’s mischaracterization of the evidence. In fact, the VA’s explanation\n\nhas been entirely consistent throughout this litigation. In discussing physicians’\n\n“salaries,” of which market pay is only one component part, Plaintiff’s supervisor\n\n\n -17-\n\fexplained that physicians could only obtain salary increases during the pay freeze by\n\ntaking on additional job duties. (Id. at 620.) He also explained that some apparent salary\n\nincreases had not actually been increases to the physician’s salary, but simply reflected a\n\nrecharacterization of the component parts of their salary for accounting purposes. The\n\nVA has never deviated from this explanation, which is supported by contemporaneous\n\nrecords that Plaintiff has done nothing to refute.\n\n Third, Plaintiff argues that the jury could find the VA’s explanation to be\n\npretextual because the VA prepared a table showing individual physicians’ pay from 2009\n\nto 2014 that Plaintiff argues is “inaccurate and misleading” because it “overstat[es]\n\nfemale pay and leav[es] out other kinds of pay components.” (Appellant’s Opening Br. at\n\n22.) Plaintiff does not further elaborate on these accusations. To the extent she is\n\nattempting to re-assert the argument she made below that the chart is inaccurate because it\n\ndoes not include performance pay as a component of the physicians’ total compensation,\n\nwe note that Plaintiff’s claim of discrimination is limited solely to the issue of market pay,\n\nand we are not persuaded that a reasonable jury could find the VA’s explanation for the\n\nmarket pay freeze to be pretextual simply because the VA’s chart does not include a\n\ncomparison of a category of physician pay that is not at issue in this case. Moreover,\n\nPlaintiff has waived this and any other challenge to the accuracy of this evidence by\n\nfailing to adequately brief or support her argument. See Adler, 144 F.3d at 679.\n\n\n\n\n -18-\n\f Fourth, Plaintiff contends that the jury could find pretext because her supervisor\n\ndemonstrated bias towards women by allegedly selecting male physicians over female\n\nphysicians for positions of authority and later expressing dissatisfaction with Plaintiff’s\n\nfiling of an EEO complaint. However, even assuming the jury could draw some inference\n\nof gender bias from these purported facts, in order to establish pretext Plaintiff “must still\n\nshow some nexus,” Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1210 (10th Cir. 1999),\n\nbetween her supervisor’s discriminatory statements or actions and the adverse\n\nemployment action at issue in this case. Even when a decisionmaker has made\n\ndiscriminatory statements, this is insufficient to establish such a nexus; rather, something\n\nin the decisionmaker’s statements must link them to the adverse employment action at\n\nissue in the case. Id. Plaintiff has shown no such nexus. The adverse employment action\n\nat issue here is the VA’s failure to increase Plaintiff’s market pay from September 2011\n\nuntil March 2014. She contends her supervisor caused this adverse action by failing to\n\nrecommend her for a compensation panel review during the federal pay freeze. However,\n\nher supervisor in fact recommended her for a compensation panel review in mid-2012,\n\nand it was the compensation panel and the regional director, not Plaintiff’s supervisor,\n\nwho decided not to increase her market pay. Plaintiff has presented no evidence—nor has\n\nshe even argued or alleged—that the compensation panel or regional director held any\n\ndiscriminatory animus, and she has likewise presented no evidence that her supervisor\n\naffected their decision to follow the VA’s guidelines for market pay increases during the\n\n\n -19-\n\fpay freeze. Nor has Plaintiff presented any evidence suggesting that she would have\n\nreceived an increase in market pay during the pay freeze if her supervisor had\n\nrecommended her for a compensation panel review at any point between September 2011\n\nand July 2012, while the same pay freeze policies were in effect. Thus, she has not\n\nshown that her supervisor even affected her market pay during the pay freeze, much less a\n\nnexus between the pay she received and her supervisor’s hiring practices or his attitude\n\ntoward her subsequent filing of an EEO complaint. Finally, we note that Plaintiff does\n\nnot address the short period of time that elapsed between the end of the federal pay freeze\n\non December 31, 2013, and her next compensation panel review—recommended by her\n\nsupervisor—in mid-March 2014. The record reflects that Plaintiff was in India on FMLA\n\nleave when the pay freeze ended, and, to the extent any argument regarding this time\n\nperiod was not waived by Plaintiff’s failure to specifically address it, we are not\n\npersuaded that the jury could find pretext based on the timing of her compensation panel\n\nreview after her return.\n\n Fifth, Plaintiff argues that a rational factfinder could find the VA’s explanation to\n\nbe pretextual simply because her pay was lower than several male physicians’ pay during\n\nthe relevant time period. However, where the VA came forward with a non-\n\ndiscriminatory explanation for this apparent disparity in pay, the existence of the apparent\n\ndisparity does not in itself prove that the VA’s explanation must be a pretext for\n\ndiscrimination. See E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir. 1992)\n\n\n -20-\n\f(“Title VII does not make unexplained differences in treatment per se illegal nor does it\n\nmake inconsistent or irrational employment practices illegal. It prohibits only intentional\n\ndiscrimination based upon an employee’s protected class characteristics.”). To hold\n\notherwise would eviscerate the McDonnell Douglas framework by allowing a plaintiff to\n\nestablish pretext simply by reiterating her prima facie case. Cf. Reeves v. Sanderson\n\nPlumbing Prods., Inc., 530 U.S. 133, 148 (2000) (“[A] plaintiff’s prima facie case,\n\ncombined with sufficient evidence to find that the employer’s asserted justification is\n\nfalse, may permit the trier of fact to conclude that the employer unlawfully\n\ndiscriminated.” (emphasis added)). The mere fact that Plaintiff’s pay was lower than\n\nseveral of her male colleagues’ pay is insufficient to show that the VA’s proffered\n\nexplanation for her lower pay was unworthy of belief.\n\n Finally, Plaintiff points out that in evaluating pretext we do not “look at each piece\n\nof evidence in isolation,” but rather consider all of the plaintiff’s evidence “in its totality,”\n\nOrr v. City of Albuquerque, 531 F.3d 1210, 1215 (10th Cir. 2008), and she contends that\n\nthe district court erred in analyzing each of her arguments on pretext separately rather\n\nthan considering her arguments and evidence as a whole. We see no such error in the\n\ndistrict court’s analysis, and we further note that, while we here address Plaintiff’s\n\narguments sequentially for ease of analysis, we have considered her evidence in its\n\ntotality and find all of her evidence, taken as a whole, insufficient to permit an inference\n\n\n\n\n -21-\n\fof pretext. We accordingly affirm the district court’s entry of summary judgment in favor\n\nof Defendant on Plaintiff’s claim of gender discrimination based on unequal pay.\n\n We turn then to Plaintiff’s claim of retaliation based on her supervisor’s selection\n\nof a male physician instead of Plaintiff for the position of North May medical director.\n\nAs previously noted, to establish a prima facie case of Title VII retaliation, Plaintiff must\n\nshow “(1) that she engaged in protected opposition to discrimination, (2) that a reasonable\n\nemployee would have found the challenged action materially adverse, and (3) that a\n\ncausal connection existed between the protected activity and the materially adverse\n\naction.” Khalik, 671 F.3d at 1193 (internal quotation marks and brackets omitted).1 We\n\nhold that Plaintiff has failed to establish a prima facie case of retaliation because she has\n\nnot established a causal connection between any protected activity and her non-selection\n\nfor the medical director position.\n\n To establish a causal connection, a plaintiff must “present evidence of\n\ncircumstances that justify an inference of retaliatory motive.” Ward v. Jewell, 772 F.3d\n\n\n\n 1\n Like the district court, we note that it is not entirely clear whether Plaintiff, as a federal\nemployee, can bring a retaliation claim against the VA. See Green v. Brennan, 136 S. Ct. 1769,\n1774 n.1 (2016) (assuming without deciding that such a claim could be brought); see also id. at\n1792 n.2 (Thomas, J., dissenting) (arguing that federal employees may not bring Title VII\nretaliation claims because “Title VII’s federal-sector provision incorporates certain private-sector\nprovisions related to discrimination but does not incorporate the provision prohibiting retaliation\nin the private sector”). Because neither the parties nor the district court have addressed this\nargument, we will likewise assume without deciding that such a claim is available to Plaintiff.\nWe express no opinion as to whether the district court should address this issue on remand of the\nsecond retaliation claim, nor do we express any opinion as to what the correct resolution of this\nissue would be.\n\n -22-\n\f1199, 1203 (10th Cir. 2014) (internal quotation marks omitted). “If the protected conduct\n\nis closely followed by the adverse action, courts have often inferred a causal connection.”\n\nId. However, a three-month gap between protected activity and an adverse action is too\n\nlong to support an inference of causation on its own. Anderson v. Coors Brewing Co.,\n\n181 F.3d 1171, 1179 (10th Cir. 1999). Thus, where a gap of three months or longer has\n\noccurred, a plaintiff must present other evidence—“‘more than mere speculation,\n\nconjecture, or surmise’”—to establish that her protected activity was a but-for cause of\n\nthe adverse employment action. Ward, 772 F.3d at 1203 (quoting Bones v. Honeywell\n\nInt’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)); see also Univ. of Tex. Sw. Med. Ctr. v.\n\nNassar, 570 U.S. 338, 352 (2013).\n\n It is undisputed in this case that Plaintiff’s last protected activity occurred more\n\nthan three months before the VA decided not to select her for the medical director\n\nposition. (See Appellant’s Opening Br. at 30 (“[Plaintiff’s] most recent protected activity\n\nwas her Sept. 16, 2014, filing of a federal gender discrimination lawsuit.”); see also\n\nAppellant’s App. at 361 (stating that the first set of interviews occurred in January 2015);\n\nid. at 691 (indicating that Plaintiff’s non-selection for the position occurred on March 23,\n\n2015).) Plaintiff argues that she presented other evidence of causation in the form of her\n\ntestimony that in 2013 her supervisor expressed anger regarding her filing an EEO\n\ncomplaint and said he did not want her to continue with the complaint. We note that her\n\ntestimony was rather ambiguous on this point. Although she said, “Yes,” when asked\n\n\n -23-\n\fwhether her supervisor ever expressed anger at her filing the complaint, her own\n\nexplanation of the situation was:\n\n He was angry at me complaining about [the nurse assigned to her team at\n North May] and he was angry about revealing all the stuff what is going on\n in the primary care to the chief of staff and the medical director. And he\n would nitpick on small administrative stuff and comment on those. . . . So\n he was very upset.\n\n(Appellant’s App. at 664–65.) Despite being asked to elaborate, Plaintiff never described\n\na single conversation in which her supervisor’s alleged anger was directed at her EEO\n\ncomplaint of discrimination rather than personnel problems. Likewise, although Plaintiff\n\ntestified broadly that her supervisor “didn’t want [her] to continue with the EEO\n\ncomplaint,” when she was asked to elaborate on any conversations in which her\n\nsupervisor told her not to continue with the complaint, she responded:\n\n It was before I formally complained to the EEO, just around the time when I\n met with [another VA physician manager]. Also when he dropped by one\n time, he said this is not right, you are not supposed to do these things\n and—but I cannot reassign [the North May nurse], but you have to suck it\n up and just do it. You don’t have a choice, if you want to, we can send you\n back to the main VA to be punitive in that sense.\n\n(Id. at 665.) On cross-examination, Plaintiff clarified that she did not remember exactly\n\nwhat her supervisor said, but she inferred that he meant she should not be pursuing an\n\nEEO complaint. (Id. at 817.)\n\n Even viewing this ambiguous testimony in the light most favorable to Plaintiff, we\n\nstill are not persuaded that a reasonable jury could find a non-speculative link between\n\nPlaintiff’s supervisor’s alleged attitude towards her EEO complaint in 2013 and\n\n -24-\n\fPlaintiff’s non-selection for the position as North May medical director in 2015. First, we\n\nnote that any link between Plaintiff’s supervisor’s vague alleged comments in 2013 and\n\nhis hiring decision in 2015 is attenuated in both time and subject. Plaintiff has presented\n\nno evidence that her supervisor ever mentioned her discrimination action after she filed\n\nher formal EEO complaint in the fall of 2013. She argues that a jury could infer that her\n\nsupervisor was still angry about the discrimination action in 2015 because he told her at\n\nthat time that he would make sure she did not get the medical director position. However,\n\nPlaintiff’s own testimony clarifies that her supervisor said he would not hire her for this\n\nposition specifically because of her acrimonious “history with [the nurse] at the North\n\nMay clinic,” not for any other reason. (Id. at 669.) On appeal, Plaintiff asks us to\n\nspeculate that her supervisor was instead motivated by the same anger he had allegedly\n\nexpressed towards her EEO complaint in 2013, but none of her evidence supports this\n\nspeculation. Moreover, Plaintiff’s supervisor’s alleged statements in 2013 were centered\n\naround her relationship with the nurse at the North May clinic, not the EEO complaint,\n\nand the only action he allegedly threatened to take against her was to transfer her back to\n\nthe main office in Oklahoma City. He did not threaten her with any other consequences\n\nfor either her personnel complaints or her EEO complaint, and in fact the intervening year\n\nsaw him recommending and participating in two compensation panel reviews in which\n\nPlaintiff received a salary increase of more than $20,000, contrary to Plaintiff’s\n\n\n\n\n -25-\n\fspeculative assertion that he continued making adverse employment decisions against her\n\nbecause of lingering retaliatory animus.\n\n Additionally, any possible connection that could be drawn between Plaintiff’s\n\ncomplaint of discrimination and her later non-selection for the position as North May\n\nmedical director is further negated by the uncontested record evidence regarding the\n\nrelative merits of the two applicants for this position. It is undisputed that the other\n\napplicant had in essence already been acting as the medical director of the North May\n\nclinic for the past two years in a volunteer capacity, carrying out all of the responsibilities\n\nthat this new position would now entail. In contrast, Plaintiff had been transferred away\n\nfrom the North May clinic in 2013 because of the dysfunctional relationship she had with\n\na nurse who was employed there. As we held in Ward, “[a] reasonable fact-finder could\n\nnot infer retaliation from the decision to keep another employee in his job rather than\n\nreplace him with someone who had admittedly experienced ‘interaction issues’ with other\n\nemployees.” 772 F.3d at 1204. Plaintiff has presented no evidence of any way in which\n\nshe was objectively more qualified than the North May clinic lead physician to fill the\n\nposition of North May clinic medical director; to the contrary, the uncontested record\n\nevidence reflects that the other physician had significantly more experience than Plaintiff\n\nboth in the medical profession generally and with the VA specifically, and Plaintiff has\n\nnot shown that she had any additional certifications or qualifications that he lacked.\n\nAdditionally, the panel of medical directors who interviewed Plaintiff and the North May\n\n\n -26-\n\fclinic lead physician unanimously scored him higher than Plaintiff. In her deposition,\n\nPlaintiff not only conceded this fact, but also conceded that the other applicant “should\n\nscore higher” because of his two years of experience acting as the North May clinic\n\nliaison. (Appellant’s App. at 463.) Even taken in the light most favorable to Plaintiff, the\n\nfacts of this case simply do not “‘justify an inference of retaliatory motive,’” Ward, 772\n\nF.3d at 1203 (quoting Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir.\n\n2007)), in the VA’s decision to hire the North May clinic lead physician instead of her for\n\nthe position of North May medical director. Plaintiff has failed to meet her burden of\n\nshowing that “the desire to retaliate was the but-for cause of the challenged employment\n\naction,” Nassar, 570 U.S. at 352, and we thus affirm the district court’s grant of summary\n\njudgment in favor of Defendant on this claim of retaliation.\n\n Nevertheless, we reach the opposite conclusion on Plaintiff’s second claim of\n\nretaliation, which is based on the written reprimand she received for sending three emails\n\nthat her supervisor found objectionable, including an August 27 email she entitled\n\n“Information received by filing a FOIA request related to my EEO action related to\n\nAmbulatory Care Physic[i]ans’ pay,” which discussed the data allegedly supporting her\n\nclaim of discrimination. (Appellant’s App. at 492.) The VA does not dispute that the\n\nreprimand, recommended on the same day Plaintiff sent this email, is sufficient to\n\nestablish a prima facie case of retaliation, but it contends that Plaintiff has not come\n\nforward with sufficient evidence of pretext to rebut the VA’s legitimate non-retaliatory\n\n\n -27-\n\freason for the reprimand. However, taking all of the evidence and the inferences to be\n\ndrawn therefrom in the light most favorable to Plaintiff, we are persuaded that Plaintiff’s\n\nevidence is sufficient for a jury to find the VA’s proffered explanation to be pretextual,\n\nand we therefore reverse the district court’s ruling.\n\n The proposed reprimand included the following paragraph, which was\n\nincorporated by reference into the actual reprimand issued in September 2013:\n\n Specification 3: On or about August 27, 2013 you sent an inappropriate\n email to several employees who you labeled “Colleagues.” In the email you\n alleged various complaints regarding the pay of physicians at this facility.\n In your email you made an allegation by stating, “Maybe some money\n changed hands to make this happen?”\n\n(Appellant’s App. at 483.) The VA asserts that it had a legitimate, non-retaliatory reason\n\nto reprimand Plaintiff for sending this email: as noted in the last sentence of Specification\n\n3, Plaintiff made an accusation of bribery in her email, and this accusation of criminal\n\nbehavior warranted a reprimand. The VA acknowledges that the reprimand also mentions\n\nPlaintiff’s “alleg[ation of] various complaints regarding the pay of physicians at [the\n\nVA].” (Id.) However, the VA contends that the reprimand mentioned these allegations\n\nmerely to clarify which August 27 email was the subject of Specification 3, while the\n\nreprimand itself was based only on the accusation of bribery described in the third\n\nsentence of the specification. This may be a plausible explanation of the reprimand, but it\n\nis not the only plausible explanation. Although a jury might ultimately agree with the\n\nVA’s explanation, the facts taken in the light most favorable to Plaintiff are sufficient to\n\n\n -28-\n\fsupport a reasonable inference that the reprimand actually mentioned Plaintiff’s\n\nallegations of discrimination for the simple reason that Plaintiff’s supervisor wanted to\n\npunish her for sending her colleagues an email that alleged the VA was discriminating\n\nagainst female, foreign-born, non-white physicians. Given the timing and the wording of\n\nthe reprimand, we are persuaded that Plaintiff has met her burden of showing that a\n\nreasonable jury could find the VA’s explanation to be “‘pretextual—i.e., unworthy of\n\nbelief,’” Morgan, 108 F.3d at 1323 (quoting Randle v. City of Aurora, 69 F.3d 441, 451\n\n(10th Cir. 1995)). We therefore reverse the entry of summary judgment in favor of\n\nDefendant on this claim and remand this claim for further proceedings.\n\n Finally, we address the district court’s Rule 12(b)(6) dismissal of Plaintiff’s claim\n\nof race, sex, color, national origin, and/or religious discrimination based on the\n\nreprimand. In her original complaint, Plaintiff alleged that the reprimand was\n\ndiscriminatory simply because “[o]ther physicians had sent similar emails on similar\n\nissues of concern and have not been reprimanded for those actions.” (Appellant’s App.\n\nat 7.) After the district court held that this allegation failed to state a plausible claim of\n\ndiscrimination, Plaintiff amended her complaint to allege that “[o]ther physicians, who\n\ndid not share in [Plaintiff’s] protected characteristics and who had not engaged in\n\nprotected activity, had sent similar emails on similar issues of concern and had not\n\nreceived reprimands or similar discipline for having done so.” (Id. at 108.) Her\n\ncomplaint then asserted, “It appeared that the reprimand was issued, because of her\n\n\n -29-\n\fprotected characteristics, specifically female, from India, brown, Asian-Indian, and/or of\n\nthe Hindu religion, and/or as reprisal for her having engaged in protected activity.” (Id. at\n\n108–09.) Her amended complaint contained no other allegations to support this claim of\n\ndiscrimination.\n\n A complaint raising a claim of discrimination does not need to conclusively\n\nestablish a prima facie case of discrimination, but it must contain more than\n\n“‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory\n\nstatements.’” Khalik, 671 F.3d at 1193 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678\n\n(2009)). “While we do not mandate the pleading of any specific facts in particular,” a\n\nplaintiff must include enough context and detail to link the allegedly adverse employment\n\naction to a discriminatory or retaliatory motive with something besides “sheer\n\nspeculation.” Id. at 1194. “[A] plaintiff should have”—and must plead—“at least some\n\nrelevant information to make the claims plausible on their face.” Id. at 1193. Thus, it is\n\ninsufficient for a plaintiff to allege, for instance, that she did not receive an employment\n\nbenefit that “similarly situated” employees received. Hwang v. Kan. State Univ., 753\n\nF.3d 1159, 1164 (10th Cir. 2014). A plaintiff’s assertion that she is “similarly situated” to\n\nother employees is “just a legal conclusion—and a legal conclusion is never enough.” Id.\n\nRather, a plaintiff must allege “some set of facts”—not just legal conclusions—“that\n\ntaken together plausibly suggest differential treatment of similarly situated employees.”\n\nId. “Pleadings that do not allow for at least a reasonable inference of the legally relevant\n\n\n -30-\n\ffacts are insufficient.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,\n\n1236 (10th Cir. 2013) (internal quotation marks omitted).\n\n Plaintiff’s amended complaint fails to satisfy this standard. Although she asserts\n\nthat other, non-reprimanded physicians were similarly situated because they “sent similar\n\nemails on similar issues of concern,” (Appellant’s App. at 108), this is too conclusory to\n\npermit a reasonable inference of “differential treatment of similarly situated employees,”\n\nHwang, 753 F.3d at 1164. Most notably, “[f]or all we know from [Plaintiff’s]\n\ncomplaint,” id., these other physicians addressed their “similar issues of concern,”\n\n(Appellant’s App. at 108), without launching into the string of insults and accusations that\n\nPlaintiff included in each of the emails for which she was reprimanded; lacking any facts,\n\nwe cannot assume that these physicians were similarly situated simply because Plaintiff\n\nhas asserted that they were so. See Hwang, 753 F.3d at 1164. Her lack of any details also\n\nmakes it impossible to parse out her numerous theories of discrimination, because she\n\nfails to identify or describe the other physicians who sent purportedly similar emails, but\n\nsimply alleges that these physicians “did not share in [her] protected characteristics” and\n\nthen makes the conclusory assertion that the reprimand “appeared” to be based on “her\n\nprotected characteristics, specifically female, from India, brown, Asian-Indian, and/or of\n\nthe Hindu religion.” (Appellant’s App. at 108–09 (emphasis added).) With no additional\n\ndetails, her conclusory assertion that physicians who did not share in one or more of her\n\nprotected characteristics went unpunished for sending “similar” emails is insufficient to\n\n\n -31-\n\f“indicate that racial [or other] discrimination was the plausible, rather than just the\n\npossible reason” for her reprimand. McCoy v. Wyoming, 683 F. App’x 662, 665 (10th\n\nCir. 2017); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are\n\nmerely consistent with a defendant’s liability, it stops short of the line between possibility\n\nand plausibility of entitlement to relief.” (internal quotation marks omitted)). Plaintiff’s\n\ncomplaint thus fails to give rise to a reasonable inference of discrimination relating to the\n\nreprimand, and we affirm the district court’s dismissal of this claim.\n\n Plaintiff argues in the alternative that the district court should have granted her a\n\nsecond chance to amend her complaint so she could add factual allegations regarding the\n\npurportedly similarly situated physicians whose emails went unpunished. “We review the\n\ndistrict court’s decision to deny leave to amend a complaint for an abuse of discretion.”\n\nWilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010). The district court denied\n\nleave to amend in this case because Plaintiff—with the benefit of counsel—had already\n\nbeen granted one opportunity to amend her complaint to include facts which would give\n\nrise to a reasonable inference of discrimination. District courts have the discretion to\n\ndeny leave to amend for “‘failure to cure deficiencies by amendments previously\n\nallowed,’” id. (quoting Duncan v. Manager, Dep’t of Safety, Denver, 397 F.3d 1300,\n\n1315 (10th Cir. 2005)), and Plaintiff has not shown that the district court abused its\n\ndiscretion here. We therefore affirm the district court’s discretionary decision to deny\n\nleave to further amend this claim.\n\n\n -32-\n\f III.\n\n For the foregoing reasons, we AFFIRM the district court’s entry of summary\n\njudgment in favor of Defendant on Plaintiff’s claims of discrimination based on unequal\n\npay and retaliation based on her non-selection for the position as North May clinic\n\nmedical director. We also AFFIRM the district court’s dismissal of her claim of\n\ndiscrimination based on the reprimand she received, as well as the district court’s denial\n\nof her request for a second chance to amend this claim. We REVERSE the district\n\ncourt’s entry of summary judgment on Plaintiff’s claim of retaliation relating to the\n\nreprimand, and we REMAND this claim for further proceedings before the district court.\n\n\n\n\n -33-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367056/", "author_raw": "McKAY"}]}	LUCERO	MCKAY	MATHESON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589803/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,255	UNITED STATES of America, Plaintiff - Appellee, v. Denise Sue CHRISTY, Defendant - Appellant.	United States v. Christy	2019-02-15	17-3122	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Tymkovich, O'Brien, Matheson", "parties": "", "opinions": [{"author": "MATHESON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 15, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-3122\n\n DENISE SUE CHRISTY,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. No. 5:15-CR-40091-DDC-1)\n _________________________________\n\nPaige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public\nDefender with her on the brief), Topeka, Kansas, for Defendant - Appellant.\n\nJared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States\nAttorney, and James A. Brown, Assistant United States Attorney with him on the brief),\nTopeka, Kansas, for Plaintiff - Appellee.\n _________________________________\n\nBefore TYMKOVICH, Chief Judge, O’BRIEN, and MATHESON, Circuit Judges.\n _________________________________\n\nMATHESON, Circuit Judge.\n _________________________________\n\n Denise Sue Christy stole cash from the vault of the bank where she worked as a\n\nteller. She was charged, convicted, and sentenced for various federal crimes. She now\n\nappeals.\n\f On May 21, 2014, CNB auditors conducted a surprise audit of the Burlington,\n\nKansas Central National Bank (“CNB” or “Bank”) vault. The vault was missing\n\n$764,000. When they began to suspect Ms. Christy, she forged documents to purport that\n\nshe had sent the missing cash to the Federal Reserve Bank of Kansas City (“FRB”). A\n\ngrand jury indicted her on one count of bank embezzlement, six counts of making false\n\nbank entries, six counts of failing to report income on her taxes, and 10 counts of money\n\nlaundering. After a six-day trial, a jury found Ms. Christy guilty of all charges except\n\nfour money laundering counts.\n\n On appeal, Ms. Christy argues that (1) cumulative prosecutorial misconduct\n\nviolated her due process rights, (2) the evidence was insufficient for her money\n\nlaundering convictions, and (3) the jury instructions improperly omitted a “materiality”\n\nelement for the false-bank-entry charges.1\n\n\n 1\n Ms. Christy also argues the district court plainly erred when it failed to address\nher “personally in order to permit her to speak or present any information to mitigate the\nsentence.” Aplt. Br. at 52 (brackets omitted) (quoting Fed. R. Crim. P. 32(i)(4)(A)(ii));\nsee United States v. Bustamante-Conchas, 850 F.3d 1130, 1135-36 (10th Cir. 2017) (en\nbanc). Because we reverse her money laundering convictions and remand for\nresentencing, we need not address this issue.\n The dissent thinks resentencing is unnecessary, id. at 1 n.1, predicting, based on a\nU.S. Sentencing Guidelines analysis, that Ms. Christy’s advisory sentencing range and\nher sentence would be the same even without her money laundering convictions. Perhaps\nthat would be so, but we are less certain than the dissent, whose analysis omits the district\ncourt’s responsibility to “consider all of the [18 U.S.C.] § 3553(a) factors to determine”\nthe sentence after “correctly calculating the applicable Guidelines range.” Gall v. United\nStates, 552 U.S. 38, 49-50 (2007).\n The first factor is “the nature and the circumstances of the offense,” § 3553(a)(1),\nand the second is “the need for the sentence imposed to reflect the seriousness of the\noffense,” § 3553(a)(2)(A). The absence of six money laundering convictions may affect\nthe sentencing court’s view of those factors. Even if it does not, the evaluation of those\n\n 2\n\f Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm\n\nthe embezzlement, false bank entry, and failure to report income convictions. We reverse\n\nthe money laundering convictions, vacate the sentence, and remand for resentencing.\n\n I. BACKGROUND\n\n A. Factual History\n\n1. Burlington CNB’s Vault Management\n\n In 2014, Elaine Gifford was the retail operations supervisor of Burlington CNB.\n\nShe supervised bank teller Ms. Christy and vault teller Raylene Thorne, Ms. Christy’s\n\nsister-in-law.\n\n\n\n\nfactors lies within “the traditional exercise of discretion by a sentencing court.” Koon v.\nUnited States, 518 U.S. 81, 98 (1996).\n The dissent cites no case in which we have instructed a district court to vacate\nmultiple convictions and then declined to order resentencing. In United States v. Michel,\n446 F.3d 1122, 1127-32 (10th Cir. 2006), this court affirmed a conviction for possession\nof a firearm by a felon, vacated two additional gun-related convictions for insufficient\nevidence, and remanded for resentencing even though the district court had given the\ndefendant concurrent sentences of 240 months of imprisonment for each count. Id. at\n1136. Similarly, in United States v. Morris, 247 F.3d 1080, 1084-85, 1091 (10th Cir.\n2001), we affirmed two convictions for Hobbs Act robbery and two convictions for use\nof a gun during a crime of violence, reversed three other gun-related convictions as\nmultiplicitous, and remanded for resentencing even though concurrent sentences had\nbeen imposed for the robbery and gun offenses. We see no reason to depart from this\npractice.\n In sum, remand for resentencing adheres to our appellate role in the sentencing\nprocess. See Koon, 518 U.S. at 98. And not addressing the allocution issue comports\nwith the maxim that we decide only those issues necessary to resolve an appeal. See\nPeople for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d\n990, 1008 (10th Cir. 2017) (“If it is not necessary to decide more, it is necessary not to\ndecide more.” (brackets omitted) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799\n(D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment))).\n\n 3\n\f Ms. Gifford, Ms. Christy, and Ms. Thorne all had access to the Bank’s vault. Ms.\n\nGifford did not “keep much track of what was in the vault,” ROA, Vol. III at 673, and\n\nMs. Thorne often handed off her vault duties to Ms. Christy. Ms. Gifford relied on Ms.\n\nChristy to count the cash. When Ms. Gifford needed to record the amount of cash in the\n\nvault, she simply wrote down the numbers that Ms. Christy gave her.\n\n Approximately every other week, CNB Burlington transferred money to the FRB.\n\nWhen the vault had too much cash,2 the Burlington branch sent cash, also known as “sold\n\ncash,” to the FRB, which held the cash in an account for the branch. The FRB sent cash\n\nback to the Bank upon request. A company named Garda transported the cash to and\n\nfrom the FRB.\n\n Burlington CNB tracked its cash transfers in various ways:\n\n (1) The Bank created cash-out tickets that recorded when\n money came out of the vault, including transfers to the FRB\n and smaller transfers to teller stations within the Bank. These\n tickets contained an unalterable “proof strip” recording the\n date they were printed.\n\n (2) The Bank entered the cash-out transactions into an\n electronic system called “Vertex,” which produced a report\n that showed the amount of cash in the vault at any given time.\n\n (3) When the Bank sent cash to the FRB, it created a debit\n ticket memorializing the transaction.\n\n (4) For each sale to the FRB, the Bank created two currency\n deposit tickets that itemized the denominations it sold to the\n\n 2\n Shortly before the audit, Steve Snook, the senior retail branch administrator for\nCNB, was concerned that the Burlington branch was holding too much cash—between\n$750,000 and $1,000,000—in its vault. ROA, Vol. III at 313-16. He instructed the Bank\nto “keep [its] reserves at or around 500,000 at the most,” except when it needed\nadditional money. Id. at 317.\n 4\n\f FRB. One ticket went to Garda and the other stayed with the\n Bank.\n\n (5) When Garda employees picked up the cash, they used a\n handheld machine to print out a receipt that both a Burlington\n CNB employee and the Garda employee signed. The receipt\n contained a time/date stamp that recorded the precise second\n the receipt was printed.\n\n (6) Lisa Nabus, a senior accountant at Junction City CNB,\n balanced Burlington CNB’s FRB ledger by comparing the\n Bank’s deposits to a daily statement from the FRB.\n\n2. The May 21, 2014 Surprise Audit\n\n Leading up to May 21, 2014, Ms. Nabus noticed the following discrepancies\n\nbetween CNB Burlington’s Vertex records and the FRB’s daily statements:\n\n (1) December 17, 2013—Ms. Christy prepared a cash-out\n ticket representing that the branch had sold $401,000 to the\n FRB when in fact it had sold only $104,000.\n\n (2) January 14, 2014—Ms. Christy prepared a cash-out ticket\n representing that the branch had sold $400,000 to the FRB\n when in fact it had never sold the money.\n\n (3) February 25, 2014—Ms. Christy prepared a cash-out\n ticket representing that the branch had sold $562,000 to the\n FRB when in fact it had never sold the money.\n\n (4) March 18, 2014—Ms. Christy prepared a cash-out ticket\n representing that the branch had sold $270,000, $225,000,\n and $225,000 when in fact it had never sold any of these\n amounts.\n\n (5) April 22, 2014—Ms. Christy prepared a cash-out ticket\n representing that the branch had sold $401,000 to the FRB\n when in fact the branch had sold only $101,000.\n\n\n\n\n 5\n\fAlthough Ms. Christy adjusted the Vertex record to correct the discrepancies,3 Ms. Nabus\n\ngrew concerned about the errors and reported her concerns to Vicky Farres, a CNB\n\nauditor.\n\n In response, Ms. Farres conducted a surprise audit of Burlington CNB on May 21,\n\n2014. According to the Bank’s Vertex report, the vault should have contained $883,320\n\nin cash on that day. But the audit revealed that the vault held $119,320—$764,000 short.\n\n Ms. Farres reported that Ms. Christy was exceedingly nervous and behaved\n\nunusually during the audit. When Ms. Farres started the audit, Ms. Christy delayed the\n\ncounting process multiple times. Ms. Farres needed to prompt her to begin counting.\n\nDuring the counting, Ms. Farres noticed that Ms. Christy did not replace straps on the\n\nstacks of hundred-dollar bills after counting them. Ms. Christy also put the stacks outside\n\nMs. Farres’s sight where she could re-count the same stack. At one point, Ms. Christy\n\nclaimed that $100,000 fell into a crack between the wall and a cabinet. When Ms. Farres\n\nand her colleagues examined the crack with a flashlight and a yardstick, they found only\n\ndust.\n\n Ms. Farres asked Ms. Christy what had happened to the missing cash. Ms. Christy\n\nat first paused and then responded that she had sold it to the FRB. Ms. Farres then asked\n\nfor the Garda receipts documenting the transactions. Ms. Christy answered that Garda\n\nnever provided them to her.\n\n\n 3\n Ms. Nabus testified that it took Ms. Christy a long time to resolve the problems\nand that Ms. Christy sometimes did not properly correct the discrepancies on her first try.\nOn occasion, Ms. Nabus needed to tell Ms. Christy multiple times to take remedial\naction.\n 6\n\f The next day, however, Ms. Christy sent Garda receipts to Ms. Gifford for\n\n$90,000, $100,000, and $670,000. Ms. Christy stated she had found the receipts in a\n\ndrawer. Only the $90,000 receipt was reflected in the FRB’s records. It was also the\n\nonly original receipt located during the audit and the ensuing investigation. The other\n\ntwo were copies. Separate from the receipt, the $90,000 cash-out ticket had a “proof\n\nstrip” showing the sale was made on May 20, 2014, and the $90,000 transaction was\n\nrecorded on the Vertex report. The Garda receipt for $90,000 bore a legible bag number,\n\nwhich Garda used to track the precise delivery bag that carried the cash.\n\n The documentation of the purported $100,000 and $670,000 sales to the FRB\n\ndiffered from the $90,000 sale. First, in contrast to the $90,000 original receipt, the Bank\n\nnever found original receipts for the $100,000 and $670,000 transfers. Second, the date\n\nstamps for all three receipts matched exactly, showing that the same machine printed all\n\nthree receipts at the exact same second—May 20, 2014, at 13:35:08. Adam Lewis, the\n\nGarda employee who picked up and delivered the money, testified that printing three\n\nreceipts with precisely the same date stamp would be “completely impossible.” ROA,\n\nVol. III at 926. Third, when a transparency of the $90,000 receipt was placed over the\n\ncopy of the $100,000 receipt, the signatures matched exactly. 4 Fourth, the bag numbers\n\non the two copied receipts were illegible, and surveillance footage showed Mr. Lewis\n\nleaving the branch on May 20, 2014, with only one bag. Finally, although the date stamp\n\non the Garda receipts for the purported $100,000 and $670,000 sales was May 20, 2014,\n\n\n\n 4\n Ms. Christy and Mr. Lewis both signed the Garda pick-up receipt.\n 7\n\fthe Bank’s cash-out tickets bore a “proof strip” showing that the tickets were created on\n\nMay 21, 2014, the day of the audit. Id. at 592, 835-36.\n\n3. The Government Investigation\n\n The FBI and IRS coordinated the investigation. Two agents from an FBI task\n\nforce questioned Ms. Christy about the missing money. During the interview, the agents\n\nasked Ms. Christy if she would be willing to take a polygraph. Ms. Christy responded\n\nthat she wanted to think about it. Neither Ms. Christy nor the FBI raised the issue of the\n\npolygraph again. Throughout the interview, Ms. Christy denied any wrongdoing.\n\n IRS Special Agent Joseph Schmidt examined Ms. Christy’s bank accounts and\n\nthose of several of her family members. He reviewed Ms. Christy’s tax returns (filed\n\njointly with her husband, Chris Christy) from 2008 to 2014. Agent Schmidt found a\n\nsignificant disparity between the bank accounts and the tax returns. The Christys’\n\nreported income was about $30,000 to $64,000 per year. Their expenditures, which\n\nincluded cash payments on the Christys’ home loans, amounted to $400,000 that was\n\nunaccounted for in tax filings. Based on these calculations, Agent Schmidt concluded the\n\nChristys had failed to report income on their tax returns.\n\n B. Procedural History\n\n A grand jury indicted Ms. Christy, charging her with one count of bank\n\nembezzlement, in violation of 18 U.S.C. § 656 (Count 1); six counts of false bank entries,\n\nin violation of 18 U.S.C. § 1005 (Counts 2-7); six counts of declaring false tax returns, in\n\nviolation of 26 U.S.C. 7206(1) (Counts 8-13); and ten counts of money laundering, in\n\nviolation of 18 U.S.C. § 1956(a)(1)(A)(ii) (Counts 14-23). Ms. Christy did not testify\n\n 8\n\fduring her six-day trial. The jury convicted her of all counts except four money\n\nlaundering charges based on loan payments that occurred before 2014.\n\n The district court sentenced Ms. Christy to (1) 51 months in prison for the\n\nembezzlement and false bank entries (Counts 1-7), followed by three years of supervised\n\nrelease; (2) 36 months for filing false tax returns (Counts 8-13), followed by one year of\n\nsupervised release; and (3) 51 months for money laundering (Counts 18-23), followed by\n\nthree years of supervised release. The court ordered Ms. Christy’s sentences to run\n\nconcurrently. It also ordered $857,708 in restitution. Ms. Christy timely appealed.\n\n We will add factual and procedural background as it becomes relevant.\n\n II. DISCUSSION\n\n Ms. Christy argues that (A) cumulative prosecutorial misconduct violated her due\n\nprocess rights, (B) the evidence was insufficient for her money laundering convictions,\n\nand (C) a materiality element was improperly omitted from the false-bank-entry jury\n\ninstructions.\n\n A. Prosecutorial Misconduct\n\n Ms. Christy asserts that the prosecutor committed 12 acts of prosecutorial\n\nmisconduct based on comments made during trial. She groups the comments into three\n\n“themes,” alleging that the prosecutor (1) commented on Ms. Christy’s exercising her\n\nright to trial, (2) depicted witness Elaine Gifford as credible and sympathetic, and (3)\n\nimplied witness Raylene Thorne colluded with defense counsel. The following\n\ndiscussion describes the pertinent legal background and standard of review and analyzes\n\nthe prosecutor’s comments. Although we find or assume that some of the comments\n\n 9\n\fwere improper, we conclude that Ms. Christy has not shown they affected her substantive\n\nrights. She must do so to show cumulative error on plain error review, and therefore the\n\ncomments do not provide a ground to reverse.\n\n1. Legal Background\n\n The following describes (1) the relevant prosecutorial misconduct law, (2) the\n\nstandards of review for appellate challenges to prosecutor statements made at trial, and\n\n(3) the cumulative error framework.\n\n a. Prosecutorial misconduct\n\n Prosecutorial misconduct can cause constitutional error in two ways. Underwood\n\nv. Royal, 894 F.3d 1154, 1167 (10th Cir. 2018). First, it can prejudice a specific\n\nconstitutional right amounting to a denial of the right. Id.5 Second, “absent infringement\n\nof a specific constitutional right, a prosecutor’s misconduct may in some instances render\n\na . . . trial ‘so fundamentally unfair as to deny [a defendant] due process.’” Id. (quoting\n\nDonnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)); see United States v. Anaya,\n\n727 F.3d 1043, 1052-53 (10th Cir. 2013) (“Prosecutorial misconduct violates a\n\ndefendant’s due process if it infects the trial with unfairness and denies the defendant’s\n\nright to a fair trial.” (quotations and alterations omitted)). Ms. Christy argues that the\n\n\n 5\n These violations often occur outside of trial, such as during discovery, see Brady\nv. Maryland, 373 U.S. 83 (1963) (failure to deliver exculpatory material); jury selection,\nsee Batson v. Kentucky, 476 U.S. 79, 88 (1986) (peremptory strikes based on race);\ninitiation of proceedings, see Blackledge v. Perry, 417 U.S. 21, 28 (1974) (prosecutorial\nvindictiveness); and outside of court proceedings, see United States v. Cross, 928 F.2d\n1030, 1054 (11th Cir. 1991) (intimidation of witnesses).\n\n\n 10\n\fcumulative effect of the prosecutor’s comments denied her a fair trial.6 We therefore\n\naddress only the second manner in which prosecutorial misconduct can cause\n\nconstitutional error.\n\n The test for whether a defendant’s trial was fundamentally unfair based on a\n\nprosecutor’s comments proceeds in two steps: (1) the court first decides whether the\n\nprosecutor’s comments were improper, and (2) if so, it examines their likely effect on the\n\njury’s verdict. See United States v. Currie, 911 F.3d 1047, 1055 (10th Cir. 2018); United\n\nStates v. Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011). The court thus must weigh any\n\nimproper comments against the strength of the evidence against the defendant. See\n\nBerger v. United States, 295 U.S. 78, 88-89 (1935) (reversing conviction when\n\nprosecutor’s misconduct was “pronounced and persistent” and the evidence against the\n\ndefendant was “weak”); Darden v. Wainwright, 477 U.S. 168, 179 (1986) (assessing\n\nplainly improper statements in context of entire trial); United States v. Oberle, 136 F.3d\n\n1414, 1422 (10th Cir. 1998) (same).\n\n i. Step one—propriety of the prosecutor’s comments\n\n Courts have struggled to determine when a prosecutor’s statements are improper.\n\nSee, e.g., Runnels v. Hess, 653 F.2d 1359, 1362 (10th Cir. 1981) (“The fine line between\n\nwhat is permissible argument in this area is not always bright.”). They have found that\n\nimproper comments at trial include (1) commenting on a defendant’s failure to take the\n\n\n\n 6\n As described below, Ms. Christy argues the prosecutor improperly criticized her\nchoice to proceed to trial, but she does not argue that these comments denied her right to\ntrial.\n 11\n\fstand, see Griffin v. California, 380 U.S. 609, 611-12 (1965); (2) referring to matters not\n\nin evidence, see United States v. Ainesworth, 716 F.2d 769, 771 (10th Cir. 1983); (3)\n\nencouraging the jury to allow victim sympathy to influence its decision, see Moore v.\n\nGibson, 195 F.3d 1152, 1172 (10th Cir. 1999); (4) “vouching” for the credibility of a\n\ngovernment witness or giving personal views on the case, see United States v. Swafford,\n\n766 F.2d 426, 428 (10th Cir. 1985); (5) distorting the record by misstating the evidence,\n\nsee Le v. Mullin, 311 F.3d 1002, 1020 (10th Cir. 2002); (6) misstating the law, see\n\nCurrie, 911 F.3d at 1057; (7) making derisive comments about opposing counsel in front\n\nof the jury, see United States v. Young, 470 U.S. 1, 9 (1985); and (8) appealing to the\n\njury’s passion and prejudice or implying a jury has a civic duty to convict, see Thornburg\n\nv. Mullin, 422 F.3d 1113, 1133-34 (10th Cir. 2005); see also Paul J. Spiegelman,\n\nProsecutorial Misconduct in Closing Argument: The Role of Intent in Appellate Review,\n\n1 J. App. Prac. & Process 115, 134-36 (1999) (listing examples).\n\n Any alleged improper comments must be examined in context. Young, 470 U.S. at\n\n11. For example, when a prosecutor has responded to a defense counsel’s arguments,\n\ncourts grant more leeway. See United States v. Robinson, 485 U.S. 25, 31 (1988); United\n\nStates v. Ivory, 532 F.3d 1095, 1100 (10th Cir. 2008). In United States v. Jackson, the\n\nprosecutor suggested the defendant should “man up” and “accept responsibility” for his\n\nactions. 736 F.3d 953, 957 (10th Cir. 2013). We held that these statements did not\n\nconstitute prosecutorial misconduct because they were made in response to defense\n\ncounsel’s suggestion that others might be at fault for a car accident that occurred as the\n\ndefendant was fleeing the scene of a bank robbery he had committed. Id.\n\n 12\n\f Courts may consult codes of professional responsibility in assessing a prosecutor’s\n\nstatements. Young, 470 U.S. at 7-9 (citing American Bar Association codes of\n\nprofessional conduct); see Malicoat v. Mullin, 426 F.3d 1241, 1257 (10th Cir. 2005)\n\n(same). They also may consider the prosecutor’s intent. See Knowles v. United States,\n\n224 F.2d 168, 170 (10th Cir. 1955) (assessing propriety of comments based on their\n\n“manifest[] inten[t]”); see also Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982)\n\n(examining prosecutor’s intent in double jeopardy context to assess whether statements\n\n“goad[ed]” defendant to move for a mistrial); United States v. Tafoya, 557 F.3d 1121,\n\n1126 (10th Cir. 2009) (same). But courts “should not lightly infer that a prosecutor\n\nintends an ambiguous remark to have its most damaging meaning.” Donnelly, 416 U.S.\n\nat 647.\n\n Notwithstanding these guideposts, “[t]he line separating acceptable from improper\n\nadvocacy is not easily drawn.” Young, 470 U.S. at 7. This difficulty has prompted some\n\ncourts to assume the comments were improper and then decide whether they prejudiced\n\nthe jury’s verdict. See Fleming, 667 F.3d at 1106 (“We need not decide whether the\n\nprosecutor’s comment . . . was improper, because even if it were, [the defendant] has not\n\ndemonstrated that the statement violated his substantial rights.”). This approach relies on\n\nstep two to resolve the issue, which we turn to next.\n\n\n\n\n 13\n\f ii. Step two—effect on jury’s verdict\n\n When a court determines or assumes the prosecutor made an improper comment, it\n\nthen assesses whether the comment affected the jury’s verdict. See id.7 The applicable\n\nstandard of review, which we discuss below, determines which party bears the burden of\n\nshowing whether the defendant suffered prejudice. See Anaya, 727 F.3d at 1052-53.\n\nAbsent prejudice, a prosecutor’s improper statements alone will not require a new trial.\n\nUnited States v. Sorensen, 801 F.3d 1217, 1242-43 (10th Cir. 2015).\n\n To make the prejudice determination, courts “consider the trial as a whole,\n\nincluding the curative acts of the district court, the extent of the misconduct, and the role\n\nof the misconduct within the case.” United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir.\n\n1996) (quotations omitted); see also United States v. Taylor, 514 F.3d 1092, 1096-97\n\n(10th Cir. 2008) (finding no prejudice when district court “rapidly” issued curative\n\ninstruction). We presume that juries follow the district court’s curative instructions\n\nunless there is reason to believe otherwise. United States v. Erickson, 561 F.3d 1150,\n\n1169 (10th Cir. 2009).\n\n The prevalence and degree of improper statements in a trial can affect the\n\nprejudice analysis. See Berger, 295 U.S. at 89; Gabaldon, 91 F.3d at 94 (declaring\n\n“prosecutorial misconduct may be so egregious as to warrant reversal”). But “[t]he\n\n\n\n 7\n At trial, the district court may sua sponte determine that a prosecutor’s comment\nwas improper and prejudicial, see Anaya, 727 F.3d at 1052, but more often it will be\nasked to assess prejudice on a motion for a mistrial or a new trial, see United States v.\nGabaldon, 91 F.3d 91, 93 n.1 (10th Cir. 1996).\n\n 14\n\fultimate question is whether the jury was able to fairly judge the evidence in light of the\n\nprosecutors’ conduct.” Wilson v. Sirmons, 536 F.3d 1064, 1117 (10th Cir. 2008)\n\n(quotations omitted); see Currie, 911 F.3d at 1160 (affirming conviction in spite of\n\nprosecutor’s misstatements of law when there was “overwhelming” evidence of\n\ndefendant’s guilt).8\n\n b. Standards of review\n\n When a defendant seeks appellate relief for improper prosecutor comments made\n\nat trial, the standard of review that we apply to the foregoing two-step test depends on\n\nwhether the defendant objected at trial and how the court responded. Anaya, 727 F.3d at\n\n1052-53. In Anaya, we identified the standard of review for four situations:\n\n (1) The defendant objects and the court overrules the objection—de novo review.\n\n (2) The defendant objects, the district court takes curative action, and the\n defendant objects to the adequacy of the curative action or asks for a\n mistrial—abuse of discretion review.\n\n (3) The defendant objects, the district court sustains the objection, and the\n defendant fails to object to the adequacy of the curative action—plain error\n review.\n\n (4) The defendant does not object at trial but raises the issue on appeal—plain\n error review.\n\nId.\n\n\n\n\n 8\n As with step one in assessing prosecutorial misconduct, courts have struggled\nwith step two. This court, for example, once declared itself “in equipoise as to how the\njury must have necessarily taken [the prosecutor’s] statement.” United States v.\nRahseparian, 231 F.3d 1267, 1274 (10th Cir. 2000).\n 15\n\f Under de novo review, we “first decide whether the conduct was improper and\n\nthen, if so, whether the Government has demonstrated that error was harmless beyond a\n\nreasonable doubt.” Id. at 1052 (quotations omitted) (emphasis added). Under plain error\n\nreview, “reversal is warranted only when [1] the prosecutor’s statement is plainly\n\nimproper and (2) the defendant demonstrates that the improper statement affected his or\n\nher substantial rights.” Id. at 1053 (quoting Fleming, 667 F.3d at 1103) (emphasis\n\nadded). To be plain, an error must be “clear” or “obvious,” meaning it is contrary to\n\nwell-settled law. Taylor, 514 F.3d at 1100.\n\n c. Cumulative error\n\n Ms. Christy’s aggregate effect challenge implicates this circuit’s law on the proper\n\napproach to cumulative error review. We consider cumulative error only if the appellant\n\nhas shown at least two errors that were harmless. United States v. Rivera, 900 F.2d 1462,\n\n1469 (10th Cir. 1990) (en banc). Anything less would leave nothing to cumulate. See id.\n\nThe question is whether the two or more harmless errors together constitute prejudicial\n\nerror. See id. at 1469-70. As applied to the prosecutor comment context, a court may\n\nproceed with a cumulative error analysis only when the appellant has shown at least two\n\ncomments were improper but were not prejudicial on their own. The court would then\n\ndetermine whether the comments together were prejudicial.\n\n But before a court can make that determination, it must distinguish between\n\nalleged errors that were preserved for appeal and those that were not. As for at least two\n\npreserved errors, we consider whether the government can show they together were\n\nharmless beyond a reasonable doubt. See United States v. Rogers, 556 F.3d 1130, 1141,\n\n 16\n\f1144 (10th Cir. 2009). If the government cannot make that showing, we reverse. But if\n\nit can, we next combine the preserved errors and the unpreserved errors and decide, under\n\nplain error review, whether the defendant can show they together influenced the jury’s\n\nverdict. Id. at 1144. If the defendant cannot, we affirm.\n\n * * * \n\n With these principles in mind, we address the propriety of each of the prosecutor’s\n\ncomments, grouping them under Ms. Christy’s three “themes” of alleged misconduct.\n\nWe then analyze whether Ms. Christy has shown whether the comments we have\n\ndetermined or assumed to be improper cumulatively “infect[ed] the trial with unfairness”\n\nand denied her the right to a fair trial. Anaya, 727 F.3d at 1052. Although we determine\n\nor assume that some of the prosecutor’s comments were improper, when judged in light\n\nof the entire trial record, we conclude these comments cumulatively did not outweigh the\n\noverwhelming evidence of Ms. Christy’s guilt and did not influence the jury’s verdict.\n\n2. Analysis\n\n a. Cumulative error: analytical framework\n\n Ms. Christy argues that the cumulative effect of the prosecutor’s 12 comments\n\nviolated her due process right to a fair trial. She contends that each comment was\n\nimproper, but she does not claim that any one comment, standing alone, was enough to\n\nreverse her conviction. It follows that, even if improper, each comment alone would\n\nhave been non-prejudicial and not reversible error. Rather than seek reversal based on\n\nany single comment, Ms. Christy argues that the comments together created a\n\n\n\n 17\n\f“crescendoing” or “cumulative” effect that infected the trial as a whole. Aplt. Br. at 17,\n\n20.\n\n To enable us to do the cumulative error analysis, we must first determine whether\n\nany of the alleged wrongful comments was improper. And to do this, we must use the\n\nproper standard of review, which we outlined for different circumstances in Anaya and\n\nsummarized above. This exercise consumes the majority of our analysis below. We\n\naddress each of the prosecutor’s comments not only to assess which ones may have been\n\nimproper but also to aid our later analysis in which we weigh impropriety against the\n\nstrength of the prosecution’s case. See Darden v. Wainwright, 477 U.S. 168, 181 (1986);\n\nUnited States v. Darden, 688 F.3d 382, 397 (8th Cir. 2012) (balancing “strength of the\n\nevidence against the cumulative effect of prosecutorial misconduct”).\n\n We proceed as follows. First, we examine each of the 12 statements under the\n\nproper standard of review to determine which ones were improper. Only improper\n\ncomments qualify for the cumulative error analysis. Second, we determine whether the\n\nimproper comments preserved for appellate review together caused cumulative harmful\n\nerror. Third, assuming the preserved comments were not cumulatively harmful, we add\n\nin the unpreserved improper comments to determine whether Ms. Christy has shown the\n\npreserved and unpreserved wrongful comments influenced the jury’s verdict.\n\n b. Propriety of the prosecutor’s comments\n\n For each of Ms. Christy’s three categories of alleged improper comments, we\n\nprovide a chart that lists each comment, whether Ms. Christy objected to the comment at\n\ntrial, the court’s response to each objection, and the applicable standard of review.\n\n 18\n\f i. Comments on Ms. Christy’s exercising her rights\n\n Ms. Christy alleges that the prosecutor improperly commented on her decision to\n\nexercise her constitutional rights in the following five instances:\n\n\n Government Comments on Ms. Christy Exercising her Rights\n\n Statement Objection/ Standard of\n Result Review\n\n Comment 1\n Opening: No Plain error\n So at the end of this case and the presentation of\n evidence, we’re going to ask you to do something that\n she is unwilling to do and that is to make her\n accountable for her criminal conduct. She wants to\n get away with this scot-free . . . .\n ROA, Vol. III at 248.\n\n Comment 2\n Closing (Rebuttal): No Plain error\n So she was offered an opportunity to make an\n explanation. She was offered an opportunity to take a\n polygraph. She didn’t avail herself of ever attempting\n to contact a representative of the United States after\n that.\n ROA, Vol. III at 1089.\n\n Comment 3\n Closing (Rebuttal): No Plain error\n The evidence in its entirety should lead you to the\n conclusion that she should be held accountable for\n conduct which she is unwilling to accept.\n ROA, Vol. III at 1089.\n\n Comment 4\n Closing (Rebuttal): De novo\n\n\n 19\n\f I enjoy where we have a case where someone has Yes/\n confessed to the offense. It’s—it’s an Overruled\n acknowledgment of their wrongdoing. But short of\n that, when somebody is denying it, I would prefer a\n ridiculous story. And that’s what we’ve heard in\n argument and in cross-examination of our witnesses.\n ROA, Vol. III at 1089-90.\n\n Comment 5\n Closing (Rebuttal): No Plain error\n So I believe when you review all the evidence, you\n will find that there is evidence beyond a reasonable\n doubt to hold the defendant accountable for each and\n every count of the indictment, to return a verdict of\n that, and to make her accept responsibility for that\n verdict even though she won’t do it voluntarily.\n Thank you, folks.\n ROA, Vol. III at 1090.\n\n We review Comments 1, 2, 3 and 5 for plain error to determine whether they were\n\n“plainly improper.” We review Comment 4 de novo to determine whether it was\n\nimproper.\n\n 1) Additional legal background\n\n The Sixth Amendment provides that “the accused shall enjoy the right to a speedy\n\nand public trial.” U.S. Const. amend. VI. The Fifth Amendment provides that “[n]o\n\nperson shall be . . . deprived of life, liberty, or property, without due process of law.”\n\nU.S. Const. amend. V. Together they guarantee the defendant’s right to a fair trial. See\n\nStrickland v. Washington, 466 U.S. 668, 684-85 (1984) (“The Constitution guarantees a\n\nfair trial through the Due Process Clauses, but it defines the basic elements of a fair trial\n\nlargely through the several provisions of the Sixth Amendment.”). The Fifth Amendment\n\n\n 20\n\f“forbids either comment by the prosecution on the accused’s silence or instructions by\n\nthe court that such silence is evidence of guilt.” Griffin, 380 U.S. at 615. We have\n\n“distinguished between prosecutorial statements implying guilt or challenging\n\ncredibility,” which are not improper, from “those relating to an accused’s failure to\n\ntestify,” which are. Runnels, 653 F.2d at 1362. The prosecution is “free to comment on a\n\ndefendant’s failure to call certain witnesses or present certain testimony.” Battenfield v.\n\nGibson, 236 F.3d 1215, 1225 (10th Cir. 2001).\n\n We assess whether a comment references a defendant’s failure to testify by asking\n\n“whether the language used was manifestly intended or was of such character that the\n\njury would naturally and necessarily take it to be a comment on the failure of the accused\n\nto testify.” Knowles, 224 F.2d at 170; see United States v. Rahseparian, 231 F.3d 1267,\n\n1273-74 (10th Cir. 2000) (surveying case-law). Some courts have extended Griffin’s\n\nholding to certain enumerated rights. See, e.g., Marshall v. Hendricks, 307 F.3d 36, 71\n\n(3d Cir. 2002) (extending Griffin to the right to counsel and the right to call witnesses).\n\n 2) Analysis\n\n Ms. Christy argues that these five statements were improper because they\n\ncriticized her for exercising her constitutional rights. Her brief invokes the Fifth\n\nAmendment and Griffin’s prohibition on comment about the defendant’s silence, and it\n\ncites the Sixth Amendment regarding the defendant’s right to a trial. Aplt. Br. at 21.9\n\n\n 9\n Ms. Christy does not cite any cases in which this circuit has held that a comment\non a defendant’s decision to proceed to trial violated the due process right to a fair trial.\nSee Aplt. Br. at 21. She discusses one recent decision from the Oklahoma Court of\n\n 21\n\f Comment 2 about the offer to take a polygraph was not about Ms. Christy’s failure\n\nto testify at trial or her exercise of the right to trial. It was made in response to the\n\nfollowing part of Ms. Christy’s counsel’s closing argument: “Remember [Ms. Christy’s]\n\ninterview? And [the FBI agents] said, oh, we’ll get a polygraph. Why don’t you take a\n\npolygraph? That will sort all of this out. They didn’t do that. They didn’t ever come\n\nback and talk to her again. They didn’t reach out to her attorneys.” ROA, Vol. III at\n\n1077. In suggesting that the agents’ investigation was incomplete, Ms. Christy’s counsel\n\ninvited the prosecution to explain the lack of follow up. To “right the scale,” the\n\nprosecutor responded that Ms. Christy herself could have invited a second interview. See\n\nYoung, 470 U.S. at 12-13. Though questionably relevant, the prosecutor’s comment was\n\nmade in response to defense counsel’s criticism in closing argument of the agents’\n\ninvestigation and was not “plainly improper” under plain error review.\n\n The prosecutor’s other four statements—Comments 1, 3, 4, and 5—did not\n\ncomment about Ms. Christy’s failure to testify. They also did not expressly comment on\n\nMs. Christy’s exercising her right to a trial. These statements, broadly interpreted, could\n\nbe understood as an implied comment on Ms. Christy’s decision to go to trial rather than\n\nplead guilty, though none of them stated this specifically.\n\n\n\n\nCriminal Appeals that stated, “The prosecutor’s commentary on Appellant’s decision to\nexercise his right to trial, rather than plead guilty, is nothing short of alarming.” Barnes\nv. State, 408 P.3d 209, 214 (Okla. 2017). The Government does not contest that\ncriticizing Ms. Christy’s decision to go to trial would have been improper, but it argues\nthe prosecutor did not do so here. Aplee. Br. at 25-26.\n 22\n\f We review Comments 1, 3, and 5 to consider whether they were “plainly\n\nimproper.” Comment 1, the prosecutor’s opening statement about Ms. Christy’s\n\nunwillingness to be accountable, could be read to state the obvious—that she had not pled\n\nguilty. But it also could be taken as criticism of her decision to put the government to its\n\nburden of proving her guilty, which was her right under the Fifth and Sixth Amendments.\n\nSee generally Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993) (explaining Fifth\n\nAmendment “requirement of proof beyond a reasonable doubt” and Sixth Amendment\n\n“right to a speedy and public trial, by an impartial jury”). The same can be said about\n\nComments 3 and 5, both made in rebuttal closing argument. As noted above, the defense\n\nfailed to object to these comments, and the question under plain error review is whether\n\nthey were “plainly improper,” Anaya, 727 F.3d at 1053.\n\n Unlike a comment on a defendant’s failure to testify, which suggests the defendant\n\nlacks a truthful defense, see Griffin, 380 U.S. at 614-15, a comment that the defendant\n\nhas chosen to go trial and contest the charges rather than plead guilty carries no such\n\nconnotation. The prosecutor’s comments were not made, as they were in our Jackson\n\ncase, in direct response to an argument from defense counsel, but they did respond to the\n\ndefendant having pled not guilty. 736 F.3d at 957. We need not decide whether these\n\nstatements were “plainly improper” because, as we discuss below, even if they were, Ms.\n\nChristy has not shown that they influenced the jury in light of the compelling evidence\n\nagainst her. See Fleming, 667 F.3d at 1104.\n\n As for Comment 4, which we review de novo for its propriety, the prosecutor’s\n\nstatement that he enjoys when someone has confessed was not relevant but not improper.\n\n 23\n\fHis statement that he prefers a “ridiculous story” when someone has denied guilt seems\n\nto be a fair advocacy comment on the defendant’s evidence. The comment as a whole,\n\nlike the other comments, do not expressly criticize Ms. Christy for going to trial, but even\n\nif Comment 4 could be read as implying so, it would not be enough, along with other\n\ncomments in the cumulative error analysis below, to show prejudice.\n\n ii. Comments depicting Elaine Gifford as credible and sympathetic\n\n As noted above, Ms. Gifford was Ms. Christy’s supervisor at the Bank. She was\n\nterminated after the Bank discovered Ms. Christy’s embezzlement. Ms. Christy argues\n\nthat the prosecutor improperly depicted Ms. Gifford as credible and sympathetic in the\n\nfollowing five instances:\n\n\n Government Comments Depicting Ms. Gifford as Credible and Sympathetic\n\n Statement Objection/ Standard of\n Result Review\n\n Comment 6\n\n Opening: No Plain error\n\n And it is now time to become serious because it’s a very\n serious matter. It’s serious to the victims of the crime.\n The main victim is Central National Bank, but there was a\n lot of collateral damage caused by the defendant, Denise\n Sue Christy, over there . . . Elaine Gifford is one of the\n collateral damage [sic] caused by the defendant, Denise\n Sue Christy.\n ROA, Vol. III at 235, 238.\n\n Comment 7\n\n Direct Examination of Ms. Gifford: No Plain error\n\n\n\n 24\n\fMs. Gifford: Correct. I relied on Denise. I trusted her.\nAnd I trusted all my girls down there to do the right thing.\nYou know, you put them in charge of something, you\nrelied on them to do the correct—you know, we’re like\nfamily, you know. We were just a group that enjoyed\neach other and thought we all would do what was right.\nAUSA: Found out that wasn’t correct?\nMs. Gifford: Correct.\nAUSA: It’s okay. You—you lost your job over this,\ndidn’t you?\nMs. Gifford: I did. And I’m paying for it.\nROA, Vol. III at 706-07.\n\n Comment 8\n\nDirect Examination of Ms. Gifford: Yes/ De novo\n Overruled\nMs. Gifford: I relied on Denise to balance the vault\nevery day to make sure, you know, it balanced. Between\nher and Raylene. You know, when—when you—when\nyou work for someone—with someone for 15 years, you\nknow, you’re kind of family and you trust them and they\nshould, you know—\nDefense Counsel: Objection, Judge. I’m sorry, it’s\nnonresponsive.\nThe Court: Yeah, I think it’s—I think we wandered into\nan area. Why don’t you put a question to the witness.\nAUSA: So you’re telling us, I think, that you were\nrelying upon her faith and honesty?\nMs. Gifford: Yes.\nAUSA: And did you find out after May the 21st of 2014,\nthe date of the surprise examination, that she had betrayed\nyour faith—\nDefense Counsel: Objection. Improper opinion.\nThe Court: Overruled.\nDefense Counsel: Objection. Leading.\nThe Court: Overruled.\n\n\n 25\n\f ROA, Vol. III at 780-81.\n\n Comment 9\n\n Closing: No Plain error\n\n AUSA: And finally, I want to single out Elaine Gifford.\n She may have come across kind of short with you, but she\n was one of the collateral damage [sic] I mentioned in\n opening statement. This defendant, cunning and\n malevolent as she is, is willing to throw anybody under\n the bus if she can get away with her crime.\n ROA, Vol. III at 1042.\n\n Comment 10\n\n Closing: Yes/ Plain error\n Sustained\n AUSA: And what she said was what I told you in\n opening statement. That with all the rules and regulations No curative\n and so forth that the bank has in place to try to make sure measures\n these things don’t happen, it boils down fundamentally to taken or\n the honesty of the people executing those procedures. requested\n Elaine Gifford said they were like family there. And she\n was probably the most sincere witness I’ve ever seen—\n Defense Counsel: Objection. Vouching.\n The Court: Sustained.\n AUSA: She broke down on the stand and she told you\n the truth. She relied upon the honesty and integrity of her\n employees, and they did not come up to her standards.\n ROA, Vol. III at 1042-43.\n\n We review Comment 8 de novo and review Comments 6, 7, 9, and 10 for\n\nplain error.\n\n iii. Additional legal background\n\n Courts frown on attorneys commenting on the sincerity and truthfulness of a\n\nwitness. Swafford, 766 F.2d at 428. As we stated in Swafford, “We continue to hold that\n\n\n 26\n\fvouching by an attorney as to the veracity of a witness is improper conduct and an error\n\nwhich this court will carefully review.” Id. Although “some emotional influence is\n\ninevitable” in victim testimony, Wilson, 536 F.3d at 1120, “[t]his court does not condone\n\nprosecutorial remarks encouraging the jury to allow sympathy to influence its decision,”\n\nMoore, 195 F.3d at1172 (finding comments eliciting sympathy were improper but\n\nholding that they did not influence the verdict).\n\n iv. Analysis\n\n The parties agree that Comment 10—the prosecutor’s statement that Ms. Gifford\n\nwas “probably the most sincere witness the prosecutor had ever seen”—was improper\n\nvouching. See Aplee. Br. at 30 (conceding that Comment 10 was improper). We agree,\n\ntoo. Prosecutors may not personally vouch for the credibility or truthfulness of a witness.\n\nSwafford, 766 F.2d at 428. In this instance, the prosecutor made the vouching statement\n\nin his rebuttal closing argument. The district court sustained the defendant’s objection. It\n\ndid not give a curative instruction, and the defense did not ask for one.\n\n The other comments are less concerning. Not only did the defense fail to object to\n\nComments 6, 7, and 9, it also did not object to Ms. Gifford’s testimony that she was fired\n\nbecause of Ms. Christy’s embezzlement. Ms. Gifford’s testimony informed the jury\n\nabout the Bank’s management structure, her supervisory responsibilities, her deficient\n\nsupervision of Ms. Christy, and the consequences of Ms. Christy’s embezzlement. The\n\nprosecutor’s comments in opening statement, direct examination, and closing argument\n\nwere consistent with the prosecution’s task of providing a narrative of what happened.\n\nThe Supreme Court has recognized “the offering party’s need for evidentiary richness\n\n 27\n\fand narrative integrity in presenting a case,” “not only to support conclusions but to\n\nsustain the willingness of jurors to draw the inferences, whatever they may be, necessary\n\nto reach an honest verdict.” Old Chief v. United States, 519 U.S. 172, 183, 187 (1997);\n\nsee United States v. Silva, 889 F.3d 704, 713 (10th Cir. 2018).\n\n As to Comment 8, we agree with the district court’s overruling of the defense’s\n\nobjection. The prosecutor’s questions about Ms. Gifford’s trust or faith in Ms. Christy\n\nwere relevant to the circumstances surrounding the embezzlement and were not improper.\n\n We must weigh, however, the prosecutor’s plainly improper vouching statement—\n\nComment 10—against the weight of the evidence to determine whether Ms. Christy has\n\nshown that this comment, along with the prosecutor’s other comment we assume to be\n\nimproper, prejudiced the jury. As we discuss below, Ms. Christy has not met her burden.\n\n c. Comments suggesting Raylene Thorne colluded with defense counsel\n\n As noted above, Ms. Thorne was Ms. Christy’s sister-in-law and co-worker at the\n\nBank. Ms. Christy argues that the prosecutor improperly suggested that Ms. Thorne\n\ncolluded with defense counsel in the following two instances:\n\n Government Comments Implying Ms. Thorne Colluded\n with Defense Counsel\n\n Statement Objection/ Standard of\n Result Review\n\n Comment 11\n\n Redirect Examination of Ms. Thorne: Yes/ Plain error\n Sustained\n AUSA: Did you meet with [defense counsel] prior to your\n testimony today?\n\n\n 28\n\fMs. Thorne: Who?\nAUSA: The gentleman here, Mitch?\nMs. Thorne: Did I talk to him?\nAUSA: Yes.\nMs. Thorne: Yes, I have talked to him.\nAUSA: Okay.\nMs. Thorne: Yes.\nAUSA: In preparation for your testimony?\nMs. Thorne: He’s gone over the same things that you\nhave gone over.\nAUSA: Okay.\nMs. Thorne: Yes. He asked me why I would have signed\ncertain tickets.\nAUSA: You have to answer my questions, okay?\nMs. Thorne: Okay.\nAUSA: When you met with him, how many occasions\nwas it?\nMs. Thorne: Actually to sit down and talk to him,\nprobably two.\nAUSA: For how long?\nMs. Thorne: I would say anywhere from 30 minutes to\nmaybe an hour.\nAUSA: Because you seem to be kind of rehearsed, your\nquestions—\nDefense Counsel: Objection, Judge.\nThe Court: Sustained. It’s argumentative.\nROA, Vol. III at 892-93.\n\n Comment 12\n\nClosing (Rebuttal):\nAUSA: [1] We called Raylene [Thorne] to the stand [1] No Plain Error\nbecause she told us during the interview what we’d present\nas far as evidence was concerned. Raylene Thorne, I\nremind you, is the sister-in-law of the defendant. She\n 29\n\fconfirmed what Elaine told you was the practice in respect\nto filling out the Vertex reports. And that was both she,\nElaine, and Raylene relied upon calculator tapes that were\npresented to her by the defendant, Denise Christy. That’s\nwhat they relied on. This audit was supposedly done,\nElaine is sitting at a desk. She’s not even looking into this.\nAnd Elaine is simply putting down in the audit report what\nDenise Christy is telling her are the denominations in that\nvault. [2] Now, she did have some interesting testimony [2] No Plain error\non cross examination, which we had never heard before,\nand that was that she counted the vault. Never told us that\nduring the interview. I would have presented that as\nevidence because that’s my job, to provide any\nexculpatory information I’m aware of. [3] And it was [3] Yes/ De novo\nclear that she had been prepared by the defense for rapid- Overruled\nfire responses. Question. Boom. Question. Boom.\nQuestion. Boom. I didn’t know that she had met with the\ndefense. But she had. For hours. But, you know, when\nyou have that kind of rapid-fire questioning and response,\nyou make mistakes kind of like you do when you’re\nfabricating documents—\nDefense Counsel: Objection. Impugning the defense.\nThe Court: I didn’t hear the objection.\nDefense Counsel: Impugning the defense, Judge.\nThe Court: Let me talk to you. Sidebar, please.\nDefense Counsel: Judge, the argument is that the defense\nhas somehow concocted some kind of defense by\ncoordinating the witnesses and doing this—some kind of\nrapid-fire question and response. That impugns upon\ndefense counsel, that they have done something wrong.\nThat’s an improper argument.\nThe Court: Mr. Hathaway.\nAUSA: That’s not an improper argument if they’re\nbeing—being prepared. And I’m just going to go into the\nnext phase of it, which is that she testified to something\nthat was false and that is that she testified she counted the\nvault on two occasions when her sister-in-law was on\nvacation. It turns out that Raylene was on vacation with\nher sister-in-law.\n\n\n 30\n\f Defense Counsel: Judge, I’m not objecting to whether or\n not the prosecutor wants to present evidence. I’m\n objecting to the manner in which he did this and to\n impugning the defense. Is [sic] improper argument.\n AUSA: They impugned the government at every turn.\n The Court: I’m going to overrule the objection. I do\n think there has been an attack on the investigation. I think\n this is fair comment. I think fabrication—calling it\n fabricating is a verb that concerns me some.\n AUSA: Well, I was referring to the documentation that\n were the tickets, that she fabricated those.\n The Court: I don’t think that’s—my concern is that’s not\n what you said. I’m overruling the objection. But I do—I\n do request that you steer clear of fabrication by counsel\n because I don’t think that is what you intend to say and I\n think it’s close to what you’re saying.\n ROA, Vol. III at 1083-86.\n\n We review Comment 11 for plain error. Comment 12 has three parts—(1) a\n\nreminder that Ms. Thorne was Ms. Christy’s sister-in-law and of Ms. Thorne’s role in\n\npreparing the audit report, (2) a statement that the prosecutor heard for the first time on\n\ncross-examination that Ms. Thorne “counted the vault” and how the prosecutor would\n\nhave disclosed that information had he known about it earlier, and (3) a statement about\n\nthe defense’s preparation of Ms. Thorne for her testimony. Defense counsel objected\n\nonly to the third part, and his objection was overruled. So we apply plain error review to\n\ndetermine whether the first two parts of Comment 12 were plainly improper statements\n\nand de novo review to decide whether the third was improper.\n\n\n\n\n 31\n\f i. Additional legal background\n\n “Attacks on defense counsel can at times constitute prosecutorial misconduct.”\n\nWilson, 536 F.3d at 1119. In a criminal trial, “[t]he prosecutor is expected to refrain from\n\nimpugning, directly or through implication, the integrity or institutional role of defense\n\ncounsel.” Id. (quoting United States v. Bennett, 75 F.3d 40, 46 (1st Cir. 1996)). On the\n\nother hand, “it is not improper for a prosecutor to direct the jury’s attention to evidence\n\nthat tends to enhance or diminish a witness’s credibility.” Thornburg v. Mullin, 422 F.3d\n\n1113, 1132 (10th Cir. 2005).\n\n ii. Analysis\n\n In its redirect examination of Ms. Thorne, which included Comment 11, the\n\nprosecution inquired about her meeting with defense counsel to go over her testimony.\n\nThe questioning was mostly unobjectionable, commonplace impeachment. Toward the\n\nend, however, rather than ask a question, the prosecutor said, “Because you seem to be\n\nkind of rehearsed, your questions—.” ROA, Vol. III at 893.\n\n In asking Ms. Thorne about her meetings with defense counsel, the prosecutor\n\nmay instead have inquired whether they rehearsed her testimony. But the prosecutor\n\nchose to express his own opinion that the in-court testimony “seem[ed] . . . rehearsed.”\n\nId. The court, correctly in our view, sustained the defense’s objection, explaining that the\n\nprosecutor’s statement was “argumentative.” Id. Defense counsel did not seek a curative\n\ninstruction, and the court did not give one.\n\n Although the prosecutor’s statement was objectionable, whether it was “plainly\n\nimproper” in the context here need not be determined. Because even if it were, Ms.\n\n 32\n\fChristy has not shown, as we discuss below, that the cumulative effect of the prosecutor’s\n\nchallenged statements influenced the jury verdict in the face of the incriminating\n\nevidence presented against her.\n\n Comment 12 in the Government’s rebuttal closing argument was more benign.\n\nFirst, the statement properly recounted that Ms. Thorne is Ms. Christy’s sister-in-law and\n\nMs. Thorne’s role in preparing the audit report. See Thornburg, 422 F.3d at 1132.\n\nSecond, the prosecutor’s comment about Ms. Thorne’s testimony on cross-examination\n\n“that she counted the vault” as something she had not previously told the government,\n\nand that he would have disclosed it if she had, seems to stray from the record. ROA, Vol.\n\nIII at 1084. The first statement was not plainly improper, and we doubt the second one\n\nwas either, but even if we assume it was and include it in the cumulative error analysis,\n\nwe later conclude there was no cumulative error.\n\n The prosecutor’s third statement in Comment 12 was that “[Ms. Thorne] had been\n\nprepared by the defense for rapid-fire responses” and that “you make mistakes kind of\n\nlike you do when you’re fabricating documents.” ROA, Vol III at 1084. Defense\n\ncounsel objected that this was “[i]mpugning the defense.” Id. The court overruled the\n\nobjection, though it said the word “fabricating” “concerns me some.” Id. at 1086. The\n\nprosecutor said he was referring to the “tickets[] that she fabricated.” Id. The court told\n\nhim to “steer clear of fabrication by counsel because I don’t think that is what you intend\n\nto say and I think it’s close to what you’re saying.” Id. We agree that the prosecutor\n\ncame close to the line, but again, even if improper, the statement was not enough, along\n\n\n\n 33\n\fwith the other statements considered for their cumulative error, to overcome the evidence\n\nsupporting Ms. Christy’s convictions.\n\n * * \n\n To recap our step one review, Comments 2, 6, 7, 9, and the first part of Comment\n\n12 were not plainly improper.10 Comment 8 was not improper. Comments 1, 3, 4, and 5\n\nmay have impliedly criticized Ms. Christy’s choice to go to trial; Comment 11 stated\n\nrather than asked whether Ms. Thorne’s testimony had been rehearsed; the second part of\n\nComment 12 about Ms. Thorne’s cross-examination included off-record comment; and\n\nthe third part of Comment 12 about defense counsel’s preparation of Ms. Thorne to\n\ntestify was, as the district court said, at least borderline improper. As to these comments,\n\nwe do not need to decide whether 1, 3, 5, 11, and the second part of 12 were plainly\n\nimproper under plain error review or whether 4 and the third part of 12 were improper\n\nunder de novo review. We will assume that they were, but when combined with\n\nComment 10, which was plainly improper, they did not, as the ensuing analysis shows,\n\ninfluence the jury’s verdict.\n\n As we turn to the cumulative error analysis, the following chart summarizes where\n\nwe are after our step one discussion. Only the comments with check marks in the last\n\nthree columns qualify for cumulative error review.\n\n\n\n\n 10\n Comment 2 was dubiously relevant and likely excludable had there been an\nobjection, but it was not plainly improper.\n 34\n\f Comment Not Not Plainly Assume Assume Plainly\n Improper Improper Improper Plainly Improper\n Improper\n 1 \n\n 2 \n\n 3 \n\n 4 \n\n 5 \n\n 6 \n\n 7 \n\n 8 \n\n 9 \n\n 10 \n\n 11 \n\n 12[1] \n\n 12[2] \n\n 12[3] \n\n3. Cumulative Effect of Improper Comments on Ms. Christy’s Substantial Rights\n\n Under our cumulative error analysis, we first examine the preserved errors and\n\ndetermine their effect on the jury’s verdict. Rogers, 556 F.3d at 1144. As discussed\n\nabove, the district court overruled Ms. Christy’s objections to Comments 4, 8, and the\n\nthird part of 12, and we therefore have reviewed each of those comments de novo.\n\nAnaya, 727 F.3d at 1052. We found that Comment 8 was not improper but assumed that\n\nComments 4 and the third part of 12 were improper. Ms. Christy does not argue that\n\n 35\n\fthese preserved errors affected the verdict. Aplt. Br. at 19-20. But even if she had, for\n\nthe reasons stated below as to all the comments that qualify for cumulative error review,\n\nthe Government could show beyond a reasonable doubt that the trial was not “so\n\nfundamentally unfair as to deny [her] due process,” Donnelly, 416 U.S. at 645; see\n\nRivera, 900 F.2d at 1470 n.6.\n\n Accordingly, we move to the second step of cumulative error analysis and\n\nconsider whether the effect of the preserved-error comments, together “with the\n\nunpreserved errors, are sufficient to overcome the hurdles necessary to establish plain\n\nerror.” Rogers, 556 F.3d at 1144 (quotations omitted). As to Comment 10 and the\n\ncomments we assume were improper or plainly improper, Ms. Christy still must show\n\nthat they cumulatively influenced the jury’s verdict. See Fleming, 667 F.3d at 1104;\n\nAnaya, 727 F.3d at 1053. We conclude that she has not done so.\n\n First, and most important, the inculpatory evidence against Ms. Christy was\n\noverwhelming. The Government proved that Ms. Christy had deposited more than\n\n$400,000 in her personal accounts over a six-year period and that she failed to report the\n\ndeposits on her tax returns from 2008 through 2014.11 Ms. Christy argues her deposits\n\n“did not add up to anywhere near [the missing] [$764,000].” Aplt. Br. at 38. But she\n\noffers no explanation for the dramatic difference between her sizeable cash deposits and\n\nher reported income.\n\n\n\n\n 11\n The indictment did not charge Ms. Christy for filing a false 2014 return, though\nthere was evidence that she failed to report income for that year as well.\n 36\n\f The jury also heard testimony from Ms. Farres about Ms. Christy’s nervousness\n\nduring the audit and her suspicious conduct in the vault. For example, she caught Ms.\n\nChristy trying to recount stacks of hundred-dollar bills and investigated Ms. Christy’s\n\nbluff that $100,000 had fallen into a crack near the vault. Moreover, the jury heard Ms.\n\nGifford explain that the day after the audit, Ms. Christy “found” two deposit receipts\n\nshowing that she had transferred the missing cash to the FRB. See ROA, Vol. III at\n\n698-703. But the “receipts” (1) were copies, (2) bore the exact same signatures and time\n\nstamps as another original receipt, (3) did not contain a legible bag number, and (4)\n\ncorresponded to cash-out tickets bearing unalterable “proof strips” declaring they were\n\nprinted on May 21, 2014, the day of the audit. In short, the evidence showed that the\n\nreceipts had been fabricated—copied from an original receipt and reflecting false\n\ndeposits. The false deposits were just two in a string of fraudulent “sales” that Ms.\n\nChristy made (and which Ms. Nabus caught and flagged).\n\n In addition, both Ms. Gifford’s and Ms. Thorne’s testimony established that Ms.\n\nChristy was responsible for the daily operations of the vault. Although Ms. Gifford was\n\nthe branch manager and Ms. Thorne was nominally the vault teller, Ms. Christy\n\nconducted routine audits and sent money to the FRB on a biweekly basis, providing her\n\nthe opportunity to prepare false bank entries and embezzle the cash. Moreover, to the\n\nextent the defense tried to pin blame on Ms. Thorne and Ms. Gifford, the jury had a full\n\nopportunity to judge their credibility. In short, the evidence was more than sufficient for\n\n\n\n\n 37\n\fthe jury to convict Ms. Christy of embezzling the Bank’s money, submitting false entries\n\nto the bank, and falsely reporting her income on her tax filings.12\n\n Second, the district court instructed the jurors to disregard the prosecutor’s\n\ncomments. It told the jurors that (1) it is their duty to follow and apply the law as\n\nprovided to them by the district court (Instruction 1); (2) they are the judges of the facts\n\n(Preliminary Instructions); (3) statements and arguments of lawyers are not evidence\n\n(Preliminary Instructions and Instruction 7); (4) the government has the burden of\n\nproving the defendant guilty beyond a reasonable doubt (Instruction 4); and (5) the\n\ndefendant had no burden to prove her innocence or produce any evidence at all\n\n(Instruction 8). Absent evidence to the contrary, the jury is presumed to have followed\n\nthose instructions. Erickson, 561 F.3d at 1169.\n\n Of the 12 comments that Ms. Christy challenges, the prosecutor made one of them\n\nin his opening statement and eight in closing argument. The jury heard the preliminary\n\ninstructions immediately before opening statements and heard the remaining instructions\n\nimmediately before closing arguments. Thus, when the prosecutor made the allegedly\n\ninappropriate comments, the court’s instructions were fresh in the jurors’ minds. Ms.\n\nChristy has given us no reason to doubt that they followed those instructions.\n\n\n\n\n 12\n Please note this analysis applies to Ms. Christy’s convictions for embezzlement,\nfalse bank entries, and false tax reports. It does not apply to her money laundering\nconvictions. Because we reverse those convictions in the next section of this opinion\nbased on insufficiency of the evidence, we consider the prosecutorial misconduct issue\nonly in relation to the remaining convictions.\n 38\n\f Third, although not dispositive, the jury acquitted Ms. Christy of four money\n\nlaundering charges, which undercuts an argument that the jury could not follow\n\ninstructions or “fairly judge the evidence.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th\n\nCir. 2006). Instead, it shows that the jury was paying attention, weighed the facts, and\n\nfound that some of the charges were not sufficiently proven.\n\n Fourth, the six-day trial produced approximately 1,000 pages of transcribed\n\ntestimony from 14 witnesses. Although not “isolated,” the prosecutor’s comments\n\nrepresented a small portion of what was presented to the jury. See Donnelly, 416 U.S. at\n\n647.\n\n In sum, though we do not condone several of the prosecutor’s comments, Ms.\n\nChristy has not shown they collectively affected her substantial rights. We deny her\n\nrequest to reverse her convictions based on prosecutorial misconduct.\n\n B. Money Laundering: Sufficiency of the Evidence\n\n Ms. Christy challenges the sufficiency of the evidence for her money laundering\n\nconvictions, specifically on the mens rea element of intent. After providing additional\n\nprocedural and legal background, we review the record and conclude there was\n\ninsufficient evidence of intent for a reasonable jury to find Ms. Christy guilty of money\n\nlaundering beyond a reasonable doubt.\n\n\n\n\n 39\n\f1. Additional Procedural Background\n\n The jury found Ms. Christy not guilty of the four money laundering counts based\n\non loan payments the Christys made before 2014 (Counts 14-17). The cash payments\n\nunderlying Ms. Christy’s six money laundering convictions (Counts 18-23) were made on\n\ntwo loans in the Christys’ names at the Farmers State Bank in Aliceville, Kansas.\n\n Count 18 charged Ms. Christy with money laundering for making a $1,000\n\npayment on March 17, 2014 on Loan 7521, a home loan that originated in 2011 and\n\ncalled for a minimum monthly payment of $600. With one exception, a payment of\n\n$1,848 that was not charged in the indictment, every one of the Christys’ payments on\n\nLoan 7521 in 2013 and 2014 was $1,000. Counts 19-23 concerned cash payments on\n\nLoan 7962, a refinancing agreement for the Christys’ home loan.13 Ms. Christy was\n\nconvicted based on five cash payments on this loan made between March 17, 2014 and\n\nMay 12, 2014, ranging from $834.49 to $3,200 and averaging approximately $2,167.\n\n Ms. Christy filed a motion for acquittal on the money laundering counts at the\n\nclose of the Government’s case, arguing there was insufficient evidence to show that her\n\nloan payments were made with embezzled funds. She did not argue that there was\n\ninsufficient evidence of specific intent. She renewed her motion at the end of trial. The\n\ndistrict court denied the motion, stating,\n\n A reasonable jury could infer from the circumstantial\n evidence presented at trial that the cash used to make these\n loan payments came from funds that Ms. Christy had\n embezzled from the vault at CNB and that Ms. Christy\n\n 13\n It appears the Loan 7962 origination documents were never admitted into\nevidence.\n 40\n\f conducted the financial transactions with the intent to file a\n false income tax return in violation of 26 U.S.C. § 7206(1).\n\nROA, Vol. I at 337.\n\n2. Standard of Review\n\n In general, we review de novo whether there was sufficient evidence to support a\n\ndefendant’s convictions, United States v. Cota-Meza, 367 F.3d 1218, 1223 (10th Cir.\n\n2004), viewing all the evidence and any reasonable inferences drawn therefrom in the\n\nlight most favorable to the government, United States v. Poe, 556 F.3d 1113, 1124 (10th\n\nCir. 2009). We consider all evidence, circumstantial and direct, but we do not weigh that\n\nevidence or consider the credibility of witnesses. United States v. Rufai, 732 F.3d 1175,\n\n1188 (10th Cir. 2013).\n\n We will reverse a conviction for insufficient evidence only when no reasonable\n\njury could find the defendant guilty beyond a reasonable doubt. See Anaya, 727 F.3d at\n\n1050. But we will not uphold a conviction “that was obtained by nothing more than\n\npiling inference upon inference . . . or where the evidence raises no more than a mere\n\nsuspicion of guilt.” Rufai, 732 F.3d at 1188 (quotations omitted). “A jury will not be\n\nallowed to engage in a degree of speculation and conjecture that renders its finding a\n\nguess or mere possibility.” Id. (quotations and brackets omitted).\n\n Because Ms. Christy failed to raise her mens rea argument in her Rule 29 motion,\n\nwe review the sufficiency issue for plain error. Id. at 1189.\n\n To establish plain error, [the appellant] must demonstrate the\n district court (1) committed error, (2) the error was plain, and\n (3) the plain error affected her substantial rights. If these\n factors are met, we may exercise discretion to correct the\n\n 41\n\f error if (4) it seriously affects the fairness, integrity, or public\n reputation of judicial proceedings.\n\nUnited States v. Story, 635 F.3d 1241, 1244 (10th Cir. 2011) (citations omitted).\n\n As we have noted before, “[O]ur review for plain error in this context differs little\n\nfrom our de novo review of a properly preserved sufficiency claim” because “a\n\nconviction in the absence of sufficient evidence will almost always satisfy all four plain-\n\nerror requirements.” United States v. Gallegos, 784 F.3d 1356, 1359 (10th Cir. 2015)\n\n(citing Rufai, 732 F.3d at 1189); see United States v. Kaufman, 546 F.3d 1242, 1263\n\n(10th Cir. 2008). Accordingly, “review under the plain error standard in this case and a\n\nreview of sufficiency of the evidence usually amount to largely the same exercise.”\n\nUnited States v. Duran, 133 F.3d 1324, 1335 n.9 (10th Cir. 1998).14\n\n3. Legal Background\n\n a. The money laundering statute and the elements of the offense\n\n Broadly defined, money laundering is “[t]he act of transferring illegally obtained\n\nmoney through legitimate people or accounts so that its original source cannot be traced.”\n\nRegalado Cuellar v. United States, 553 U.S. 550, 558 (2008) (quoting Black’s Law\n\nDictionary 1027 (8th ed. 2004)). The federal money laundering statute, 18 U.S.C. §\n\n1956, provides:\n\n § 1956. Laundering of monetary instruments\n\n (a)(1) Whoever, knowing that the property involved in a\n financial transaction represents the proceeds of some form of\n\n 14\n The Government states that we should review de novo whether there was\nsufficient evidence to support Ms. Christy’s money laundering convictions. It does not\nargue for plain error review. Aplee. Br. at 36.\n 42\n\f unlawful activity, conducts or attempts to conduct such a\n financial transaction which in fact involves the proceeds of\n specified unlawful activity—\n\n (A)(i) with the intent to promote the carrying on of specified\n unlawful activity; or\n (ii) with intent to engage in conduct constituting a violation of\n section 7201 or 7206 of the Internal Revenue Code of 1986;\n or\n\n (B) knowing that the transaction is designed in whole or in\n part—\n (i) to conceal or disguise the nature, the location, the source,\n the ownership, or the control of the proceeds of specified\n unlawful activity; or\n (ii) to avoid a transaction reporting requirement under State or\n Federal law,\n shall be sentenced to a fine . . . or imprisonment for not more\n than twenty years, or both.\n\n18 U.S.C. § 1956(a) (emphasis added). The charges against Ms. Christy were based on\n\nthe italicized language in § 1956(a)(1)(A)(ii), the tax-based money laundering\n\nprovision.15\n\n At the trial, the district court instructed the jury that to find Ms. Christy guilty of\n\ntax-based money laundering under § 1956(a)(1)(A)(ii), it\n\n must be convinced that the government has proved each of\n the following beyond a reasonable doubt:\n\n FIRST: Denise Christy conducted a financial transaction;\n\n\n\n\n 15\n Only § 7206 is at issue here. It penalizes any person who “[w]illfully makes and\nsubscribes any return, statement, or other document, which contains or is verified by a\nwritten declaration that it is made under the penalties of perjury, and which he does not\nbelieve to be true and correct as to every material matter.” 26 U.S.C. § 7206(1).\n\n 43\n\f SECOND: Denise Christy knew that the property involved in\n the financial transaction represented the proceeds of some\n form of unlawful activity;\n\n THIRD: The financial transaction involved the proceeds of\n bank embezzlement as set forth in Count 1; and\n\n FOURTH: Denise Christy conducted the financial\n transaction with the intent to engage in conduct constituting a\n violation of section 7201 or 7206 of the Internal Revenue\n Code of 1986.\n\nROA, Vol. I at 108.16 On appeal, Ms. Christy does not contest that the Government\n\nproved she paid loans with money that she knew she had embezzled from the Bank—the\n\nfirst three elements. She contests whether the Government proved the fourth element,\n\nspecifically whether she made the loan payments “with the intent” to violate the tax laws.\n\nIn short, she argues the evidence at trial was insufficient to prove intent. We next address\n\nthe intent required to violate § 1956(a)(1)(A)(ii).\n\n b. Mens rea under the statute\n\n The mens rea for 1956(a)(1)(A)(ii) is purpose or specific intent. This is clear from\n\nthe following discussion of the difference between general and specific intent, the text of\n\n§ 1956(a)(1)(A)(ii), case law from our circuit, and other circuits’ interpretation of the\n\ntax-based money laundering statute. The Government therefore needed to show that Ms.\n\n\n 16\n The jury instruction tracked the statute, which includes both § 7201 and § 7206.\nThe indictment charged Ms. Christy only with violations of § 7206, and the jury was not\ninstructed on the elements of § 7201. The Government proceeded on the money\nlaundering charges based on § 7206 only. In denying Ms. Christy’s motion for acquittal\non the money laundering charges, the district court relied on “the intent to file a false\nincome tax return in violation of 26 U.S.C. § 7206(1).” Dist. Ct. Doc. 70 at 17.\n\n\n 44\n\fChristy made the charged loan payments with the purpose of furthering the false\n\nstatements on her 2014 income tax returns. See United States v. Bailey, 444 U.S. 394,\n\n403-04 (1980).17\n\n i. Mens rea, § 1956(a)(1)(A)(ii), and general and specific intent\n\n A criminal conviction generally requires proof not only of a criminal act but also a\n\nguilty mind, or “mens rea.” Torres v. Lynch, 136 S. Ct. 1619, 1630-31 (2016); Morissette\n\nv. United States, 342 U.S. 246, 250-63 (1952). The Supreme Court has “long recognized\n\nthat determining the mental state required for commission of a federal crime requires\n\nconstruction of the statute and . . . inference of the intent of Congress.” Staples v. United\n\nStates, 511 U.S. 600, 605 (1994) (quotations omitted).\n\n The criminal act under § 1956(a)(1)(A)(ii) is “to conduct [] a financial transaction\n\nwhich in fact involves the proceeds of specified unlawful activity.” The financial\n\ntransactions in this case were Ms. Christy’s loan payments. The statute requires proof of\n\ntwo types of mens rea. First, under § 1956(a)(1), the defendant must “know[] that the\n\nproperty involved in a financial transaction represents the proceeds of some form of\n\nunlawful activity.” Ms. Christy does not contest that the Government proved this\n\nknowledge element. Second, under § 1956(a)(1)(A)(ii), the defendant must have\n\nconducted the financial transaction “with the intent to engage in conduct constituting a\n\nviolation of section . . . 7206 of the Internal Revenue Code.” Ms. Christy contends the\n\nprosecution did not prove this intent element.\n\n\n 17\n As noted above, although Ms. Christy was not charged based on her 2014 tax\nreturn, Agent Schmidt testified that the Christys failed to report income on that return.\n 45\n\f The common law has distinguished “general intent” and “specific intent” crimes.\n\nBailey, 444 U.S. at 403 (1980). A crime’s mens rea is “specific intent” when the\n\nprosecution must prove not only that the defendant voluntarily and intentionally\n\ncommitted the prohibited act but also intended to violate the law. See Kawashima v.\n\nHolder, 565 U.S. 478, 483 (2012); Cheek v. United States, 498 U.S. 192, 200-01 (1991);\n\nUnited States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995) (“A specific intent crime is one\n\nin which an act was committed voluntarily and purposely with the specific intent to do\n\nsomething the law forbids.” (quotations omitted)). General intent requires only an act\n\n“done voluntarily and intentionally, and not because of mistake or accident.” Blair, 54\n\nF.3d at 642 (quoting United States v. Hall, 805 F.2d 1410, 1420 (10th Cir. 1986)).\n\n Federal criminal law and the Model Penal Code have gradually moved away from\n\nthis terminology, replacing it with a mens rea “hierarchy,” “commonly identified, in\n\ndescending order of culpability, as [1] purpose, [2] knowledge, [3] recklessness, and [4]\n\nnegligence.” Bailey, 444 U.S. at 404; see United States v. Hernandez-Hernandez, 519\n\nF.3d 1236, 1239 & n.3 (10th Cir. 2008). As the Supreme Court explained, “‘purpose’\n\ncorresponds loosely with the common-law concept of specific intent, while ‘knowledge’\n\ncorresponds loosely with the concept of general intent.” Bailey, 444 U.S. at 405; see\n\nModel Penal Code § 2.02 (defining levels in mens rea hierarchy).\n\n ii. Text\n\n The language of § 1956(a)(1)(A)(ii)—“with intent to engage in conduct\n\nconstituting a violation” of the tax laws—is phrased in specific intent terms. See Carter\n\nv. United States, 530 U.S. 255, 270-71 (2000) (explaining that “intent to steal or purloin”\n\n 46\n\fsignifies specific intent); United States v. Welch, 327 F.3d 1081, 1095 (10th Cir. 2003)\n\n(interpreting “intent to . . . promote” as requiring “a higher level of culpability than mere\n\nknowledge”). Although the defendant must “know[] the property involved in a financial\n\ntransaction” was the product of “unlawful activity,” § 1956(a)(1), “intent” in\n\n§ 1956(a)(1)(A)(ii) requires more—that the defendant had the particular objective of\n\nfiling a false tax return. That objective goes beyond simply using unlawful proceeds to\n\nconduct a transaction. The transaction itself must be performed for the purpose of filing a\n\nfalse tax return, a specific intent state of mind. The word “with” preceding “intent”\n\nshows the intent must be present at the time of the transaction and cannot be formed at\n\nsome other time, such as when the defendant filed the false return.\n\n The words “with intent to engage in conduct constituting a violation” of § 7206 do\n\nnot call for proof that the financial transaction was just “done voluntarily and\n\nintentionally.” Blair, 54 F.3d at 642. They require proof that it was done “to do\n\nsomething the law forbids,” id.—violation of the tax laws. This is notable because a\n\nspecific intent requirement typically applies to the law underlying the charged offense.\n\nBut the crime here—tax-based money laundering under § 1956(a)(1)(A)(ii)—requires\n\neven more to prove the requisite mental state. The prosecution must prove that the\n\ncriminal act—here the loan repayment—was done with the intent to violate another\n\nlaw—the statute prohibiting a false tax filing. This feature of § 1956(a)(1)(A)(ii) lends\n\nmore support that it is a specific intent offense.\n\n The language surrounding § 1956(a)(1)(A)(ii) provides even further support. See\n\nLeocal v. Ashcroft, 543 U.S. 1, 9 (2004) (“[W]hen interpreting a statute . . . we construe\n\n 47\n\flanguage . . . in light of the terms surrounding it.”); Nat’l Credit Union Admin. Bd. v.\n\nNomura Home Equity Loan, Inc., 764 F.3d 1199, 1209 (10th Cir. 2014) (examining\n\nstatute’s “surrounding language” to aid in determining its meaning). The § 1956 money\n\nlaundering statute uses the word “intent” in two provisions that are grouped together in\n\nthe same subsection—§ 1956(a)(1)(A)(i) and (ii). (A)(i) requires proof that the financial\n\ntransaction was conducted “with the intent to promote the carrying on of specified\n\nunlawful activity.” The provision at issue here, (A)(ii), requires proof of “intent to\n\nengage in conduct constituting a violation of section . . . 7206.”\n\n The intent required in (A)(ii) is even more specific than the intent in (A)(i)\n\nbecause it itemizes particular statutory provisions. Although the case law interpreting\n\n(A)(ii) is sparse, cases interpreting (A)(i) hold that it is a specific intent provision. See,\n\ne.g., United States v. Carcione, 272 F.3d 1297, 1302 (11th Cir. 2001) (interpreting\n\n§ 1956(a)(1)(A)(i) as a specific intent crime); United States v. Johnson, 440 F.3d 1286,\n\n1294 (11th Cir. 2006) (same).18 The parallel language in the two provisions and their\n\n\n\n\n 18\n In addition, the Fifth Circuit has recognized (A)(i)’s “stringent” and “rigorous”\nmens rea requirement and has applied it to other subsections of the money laundering\nstatute. See United States v. Trejo, 610 F.3d 308, 314-15 (5th Cir. 2010) (interpreting\n§ 1956(a)(2)(A) to include the “stringent specific intent requirement” for other money\nlaundering offenses). Like our sister circuits, we see no reason to interpret the specific\nintent element of the subsections differently. See Rutledge v. United States, 517 U.S.\n292, 299 & n.10 (1996) (giving the same meaning to same words in different statutes);\nVt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 786 n.17 (2000)\n(“[I]t is well established that a court can, and should, interpret the text of one statute in\nlight of the text of surrounding statutes.”).\n\n\n 48\n\fadjacent pairing in the same subsection of § 1956 shows that tax-based money laundering\n\nis a specific intent crime.19\n\n iii. Tenth Circuit case law on money laundering and intent\n\n This circuit has not addressed the tax-based money laundering provision in\n\n§ 1956(a)(1)(A)(ii). But cases interpreting § 1956(a)(1)(B)(i) help to show why “intent”\n\nin § 1956(a)(1)(A)(ii) should be read to require proof of “specific intent” or “purpose.”20\n\n In United States v. Sanders, this court addressed the sufficiency of the evidence\n\nfor a money laundering conviction under § 1956(a)(1)(B)(i), which prohibits transactions\n\n“designed . . . to conceal” the nature, location, ownership, or source of the ill-gotten\n\nfunds. 929 F.2d 1466, 1472 (10th Cir. 1991). We rejected the “argument that the money\n\nlaundering statute should be interpreted to broadly encompass all transactions, however\n\nordinary on their face, which involve the proceeds of unlawful activity.” Id. We did so\n\nbecause “the purpose of the money laundering statute is to reach commercial transactions\n\nintended (at least in part) to disguise the relationship of the item purchased with the\n\nperson providing the proceeds and that the proceeds used to make the purchase were\n\nobtained from illegal activities.” Id. Accordingly, “[w]e have repeatedly stated that\n\n\n 19\n The legislative history also supports a “specific intent” mens rea. The Senate\nReport on the Money Laundering Crimes Act of 1986 explained that tax-based money\nlaundering “requires that the transaction be conducted with the intent to facilitate tax\nevasion.” S. Rep. 99-433 at 11 (1986) (emphasis added).\n 20\n Rather than conflate tax-based and concealment-based money laundering cases,\nas the dissent alleges, Dissent Op. at 2, we note the absence of the former in Tenth Circuit\ncase law and draw lessons from the latter.\n\n\n 49\n\f§ 1956 is not a ‘money spending statute.’” United States v. Caldwell, 560 F.3d 1214,\n\n1222 (10th Cir. 2009) (quoting United States v. Garcia-Emanuel, 14 F.3d 1469, 1474\n\n(10th Cir. 1994)). Other circuits have agreed, in reliance on our decisions.21\n\n In Caldwell, we also overturned the defendant’s money laundering conviction\n\nunder § 1956(a)(1)(B)(i) for insufficient evidence. Id. at 1223. There, the defendant\n\ndistributed the proceeds of her wire-fraud scheme by writing checks to herself and her\n\nhusband. Id. at 1221-22. To prove money laundering, we held that the government was\n\nrequired to produce evidence of intent to conceal. Using ill-gotten gains for routine\n\nfinancial transactions does not suffice. Id. at 1223; see Sanders, 929 F.2d at 1472-73\n\n(overturning money-laundering conviction for insufficient evidence when defendant used\n\nill-gotten gains to openly purchase cars without using a third-party intermediary).\n\n On another occasion, in the context of § 1956(a)(1)(B)(i), we explained:\n\n Whenever a drug dealer uses his profits to acquire any\n asset—whether a house, a car, a horse, or a television—a jury\n could reasonably suspect that on some level he is motivated\n by a desire to convert his cash into a more legitimate form.\n The requirement that the transaction be “designed” to\n\n\n 21\n See, e.g., United States v. Corchado–Peralta, 318 F.3d 255, 259 (1st Cir. 2003)\n(“[N]othing about the purchases, or their manner, points toward concealment or disguise\nbeyond the fact that virtually all expenditures transform cash into something else.”);\nUnited States v. McGahee, 257 F.3d 520, 527 (6th Cir. 2001) (“Paying for personal\ngoods, alone, is not sufficient to establish that funds were used to promote an illegal\nactivity.”); United States v. Majors, 196 F.3d 1206, 1213 (11th Cir. 1999) (“subscrib[ing]\nto” our reasoning in Garcia-Emanuel); United States v. Stephenson, 183 F.3d 110,\n120-21 (2d Cir. 1999) (“[A]bsent proof of intent to conceal, an ordinary purchase made\nwith ill-gotten gains does not violate the money laundering statute.”); United States v.\nHerron, 97 F.3d 234, 237 (8th Cir. 1996) (endorsing our reasoning in Sanders); United\nStates v. Dobbs, 63 F.3d 391, 398 (5th Cir. 1995) (adopting our reasoning in Garcia-\nEmanuel).\n 50\n\f conceal, however, requires more than a trivial motivation to\n conceal.\n\nGarcia-Emanuel, 14 F.3d at 1474. Notably, the defendant in Garcia-Emanuel was also\n\nconvicted of five counts of tax evasion but was not charged with tax-based money\n\nlaundering under § 1956(a)(1)(A)(ii). Id. at 1471, 1472.\n\n The need to prove purposeful intent to establish tax-based money laundering\n\ndovetails with the Tenth Circuit’s well-established principle that “money laundering” is\n\nnot “money spending.” See Caldwell, 560 F.3d at 1221. We do not suggest the use of\n\ntainted proceeds to pay for goods, services, or loan payments can never violate\n\n§ 1956(a)(1)(A)(ii), but more is required than proof of the payment. The prosecution\n\nmust show that a purpose of the expenditures was to file a false tax return. Proof of\n\nunlawful purpose converts money spending to money laundering.\n\n iv. Out-of-circuit case law interpreting 18 U.S.C. § 1956(a)(1)(A)(ii)\n\n The First, Fifth, and Eleventh Circuits have upheld convictions under\n\n§ 1956(a)(1)(A)(ii) when the defendants conducted their “financial transactions” with the\n\npurpose or specific intent of furthering their tax fraud. See United States v. Zanghi, 189\n\nF.3d 71, 81 (1st Cir. 1999); United States v. Crader, No. 00-10337, 2001 WL 872711, at\n\n1, 5 (5th Cir. July 2, 2001) (unpublished); United States v. Suba, 132 F.3d 662, 675\n\n(11th Cir. 1988).\n\n In Zanghi, the defendant engaged in securities fraud through an “S” Corporation to\n\ngenerate income. 189 F.3d at 75-76. He then transferred the proceeds of the fraud with\n\nchecks from the “S” Corporation to himself, noting the money was for “loan\n\n\n 51\n\frepayments.” Id. at 76-77.22 This characterization was false because he had not\n\npersonally loaned money to the corporation. Id.\n\n Characterizing the [checks] as loan repayments allowed Zanghi to\n argue to [his company’s] accountant that [the funds used for the\n checks] were originally deposited in [the company’s] account as the\n proceeds of loans, not as the proceeds of the illegal sale of preferred\n shares in [the company] (which they in fact were).”\n\nId. at 81. By mischaracterizing the illegally obtained funds as loan repayments to himself\n\nrather than accurately labeling them as fraud-related profits, he concealed the income,\n\nand its source, on his tax forms. Id.\n\n The First Circuit affirmed Mr. Zanghi’s money laundering convictions. Id. It\n\nstated the elements of tax-evasion-based money laundering: the defendant must have\n\n(1) engaged in a financial transaction, (2) knowing it involved the proceeds of criminal\n\nactivity, and (3) with the intent of engaging in conduct constituting tax fraud. See id.\n\nat 77-78. Interpreting the “intent” element, the district court had instructed the jury that it\n\nneeded to find that Mr. Zanghi engaged in the financial transactions for the sole purpose\n\nof evading taxes. Id. at 77. On appeal, Mr. Zanghi argued that this legal interpretation\n\nwas the law of the case and that the evidence was insufficient to satisfy the “sole\n\npurpose” standard. Id. at 79.\n\n The First Circuit disagreed with this argument, correcting the district court’s legal\n\nconclusion and explaining that “exclusive intent to evade taxes is not required.” Id. at 78\n\n\n 22\n In Zanghi, the court “note[d] that § 1956 is relatively new and has been\ninfrequently applied. There is little precedent elucidating its application.” Zanghi, 189\nF.3d at 78 n.5. Nearly a decade later, we can still state that § 1956(a)(1)(A)(ii) “has been\ninfrequently applied.” Id.\n 52\n\f(emphasis added). It further explained that the jury could infer intent to engage in\n\nconduct constituting a violation of 26 U.S.C. § 7201—the specific intent element of\n\n§ 1956(a)(1)(A)(ii)—based on “consistent patterns of understatement coupled with\n\nconduct tending to conceal.” Id. at 80. In other words, a defendant need not conduct the\n\nfinancial transaction with the sole purpose of evading taxes, but tax evasion must be a\n\npurpose of the financial transaction, a holding consistent with the understanding that tax-\n\nbased money laundering is a specific-intent crime. Id.\n\n In Crader, the defendants ran a non-profit organization funded by federal grants.\n\n2001 WL 872711, at 1. It provided services to persons afflicted with AIDS and HIV.\n\nId. The indictment charged defendants with money laundering in connection with their\n\nscheme to overcharge clients and develop a “cash hoard” that they used to benefit\n\nthemselves and to pay salaries and expenses of their favored clients. Id. The defendants\n\nthen used the organization to distribute its ill-gotten gains to help themselves and their\n\npreferred employees evade taxes. Id. Specifically, they (1) issued checks in a third-\n\nparty’s name, (2) characterized checks as rent or reimbursements rather than income, (3)\n\n“failed to issue 1099’s or W-2’s to the ultimate beneficiaries of the checks,” and (4)\n\n“directed the preparation of Forms 1099 and W-2 which reported taxable income under\n\nthe names and tax identification numbers of the third party recipients rather than the\n\nactual recipients of the funds.” Id. at 4. The defendants’ “financial transactions”\n\ntherefore directly affected their tax liability or the tax liability of their employees and the\n\nFifth Circuit affirmed their tax-based money laundering convictions. Id.\n\n\n\n 53\n\f In Suba, the Eleventh Circuit considered a 133-count indictment that included\n\nmultiple types of money laundering. 132 F.3d at 665-67. It only briefly discussed the\n\nspecific intent element of §1956(a)(1)(A)(ii). But the court affirmed the defendants’ tax-\n\nbased money laundering convictions when they deposited unlawful Medicare\n\novercharges into Managed Risk accounts, distributed the accounts’ funds to themselves\n\nas shareholders, and separately “forged the trustee’s signature and endorsements and\n\ninvested the proceeds in securities and real estate” to facilitate the scheme. Id. at 675.\n\nThese facts are consistent with a purpose requirement for tax-based money laundering\n\nbecause shifting funds and using unwitting third parties concealed the nature of the\n\ndefendants’ transactions and enabled the filing of false tax returns. Id.\n\n In each of these cases, the defendants used corporate entities to mischaracterize or\n\nconceal their financial transactions using ill-gotten gains. The transactions furthered the\n\ndefendants’ tax fraud by hiding the true source of the funds. In other words, the financial\n\ntransactions had the purpose of furthering or facilitating the underlying tax crime.\n\n * * \n\n In summary, based on the law defining specific and general intent, the text of\n\n§ 1956(a)(1)(A)(ii), the Tenth Circuit cases establishing that money laundering is not\n\nmoney spending, and the out-of-circuit decisions requiring purpose or specific intent to\n\nviolate § 1956(a)(1)(A)(ii), the Government needed to prove that Ms. Christy made her\n\nloan payments with the specific intent to violate the tax laws.\n\n\n\n\n 54\n\f4. Analysis\n\n The Government failed to produce sufficient evidence to establish that Ms. Christy\n\nmade her loan payments with the purpose of enabling her to file false tax returns. The\n\nGovernment “does not contest that § 1956 is generally not a ‘money spending statute.’”\n\nAplee. Br. at 41 (quoting Caldwell, 560 F.3d at 1222). It nonetheless argues that two\n\npieces of evidence convert Ms. Christy’s loan payments from money spending into\n\nmoney laundering. First, the Government contends that Ms. Christy’s “small-deposit\n\ntransactions were designed precisely to disguise her six-figure embezzlement from\n\nCNB.” Id. at 42. Second, it asserts that Ms. Christy’s failure to report income when she\n\nfiled her tax returns also established her intent to engage in tax fraud when she made her\n\nloan payments. Neither argument is convincing.\n\n a. Loan payments not evidence of specific intent\n\n The Government’s first argument fails because the evidence does not show that\n\nMs. Christy’s loan payments were made to enable her to file false tax returns. Zanghi\n\nexplained that concealing the nature of the transaction may suffice to establish\n\ncontemporaneous “intent to engage in conduct constituting [willful tax evasion, i.e.,] a\n\nviolation of section 7201.” 189 F.3d at 79 (quoting 18 U.S.C. § 1956(a)(1)(A)(ii))\n\n(alteration in original).23 In that case, the government’s evidence showed that the\n\n\n\n 23\n Zanghi recognized that evidence of concealment can be used to prove intent\nunder § 1956(a)(1)(A)(ii) as well as § 1956(a)(1)(B)(i). At least one other court has\nagreed and applied “the same [mens rea for tax-based money laundering] as for\nconcealment money laundering,” requiring the government to “prove that the purpose of\n\n 55\n\fdefendant hid fraud-related income by labeling it as loan repayments. Id. at 81. Only by\n\nconcealing the source of his money could he claim in his tax filings that he had no\n\ntaxable income. Id.\n\n Similarly, in Crader, “[t]he defendants aided the ultimate beneficiaries of the\n\nthird-party checks in evading income taxes by issuing the checks in a third party’s name,\n\nrather than in the name of the actual recipient, and by characterizing the payments as rent\n\nor reimbursements, rather than as salary or other income.” 2001 WL 872711 at 4. In\n\nboth cases, a purpose of the financial transactions underlying the money laundering\n\ncharges was to mischaracterize or conceal the transaction in a way that altered the\n\napplicable tax-reporting requirements.\n\n No comparable concealment or purpose appears in this case.24 Ms. Christy’s\n\n$1,000 payment on Loan 7521 (Count 18) was the exact same amount as 20 of the 21\n\npayments she made in 2013 and 2014. As for Loan 7962, the Government did not\n\n\n\nthe transaction, and not merely the effect, was to violate 26 U.S.C. § 7206.” United\nStates v. Shellef, 732 F. Supp. 2d 42, 74 n.48 (E.D.N.Y. 2010).\n Although we agree that evidence of concealment may be used to establish the\nintent element of tax-based money laundering, the term “conceal” is not used in\n§ 1956(a)(1)(A)(ii), as it is in § 1956(a)(1)(B)(i). Our discussion of “concealment”\nresponds to the Government’s argument that it proved intent with evidence of Ms.\nChristy’s concealment. Aplee. Br. at 37-42 (using the word “conceal” or “concealment”\n14 times).\n 24\n The Government argues that, to make her deposits more traceable, Ms. Christy\ncould have deposited the cash into her own account and then transferred it to her loan\nservicer. See Aplee. Br. at 41-42. But, as Ms. Christy notes, “had [she] moved the cash\ndeposits through more than one account, the government would argue that the very\nmultiplicity of transactions indicated a design to conceal.” Aplt. Reply Br. at 13.\n\n 56\n\fintroduce the loan documents into evidence, so there is no evidence that Ms. Christy’s\n\npayments were irregular relative to the terms of the loan and her prior payments. The\n\namounts of Ms. Christy’s payments varied, but they still fell within a $2,400 range, and\n\nnone deviated from the average payment by more than $1,200. Nothing about the\n\nfrequency or size of the payments suggests Ms. Christy was attempting to conceal the\n\nsource of her income.\n\n Based on the foregoing, the Christys’ loan payments were neither unusual nor\n\nsuspicious. The embezzled funds could just have easily been spent on groceries, see\n\nUnited States v. Dobbs, 63 F.3d 391, 397-98 (5th Cir. 1995) (overturning money\n\nlaundering convictions when illicit funds were used “to pay ranch and family expenses”);\n\na new car, see Sanders, 929 F.2d at 1472; or on personal checks, see Caldwell, 560 F.3d\n\nat 1222; none of which constitutes “concealment.” See Carter, 530 U.S. at 269\n\n(interpreting mens rea in criminal statute to avoid punishing “otherwise innocent\n\nconduct”).25 Just as the purchases in Sanders and Caldwell were deemed “ordinary\n\ncommercial transactions” and the evidence failed to show they were designed to conceal\n\nor disguise drug sale proceeds, Ms. Christy’s loan payments also were ordinary\n\n\n 25\n At trial, Mr. Schmidt testified that if Ms. Christy had spent the embezzled\nmoney on “groceries, diapers, anything, that becomes money laundering.” ROA, Vol. III\nat 501. The prosecutor also asked Mr. Schmidt, “[I]f I sell drugs and I’ve got 10,000 and\nI buy a new car, spending that money is money laundering?” Id. Mr. Schmidt answered\n“yes,” but his answer plainly misstates the law of this circuit. See Sanders, 929 F.2d at\n1472 (reversing money laundering convictions for purchasing vehicle with proceeds of\ndrug sales). The Government echoed Mr. Schmidt’s testimony at oral argument. See\nOral Arg. at 24:43-26:40 (Government counsel arguing that Ms. Christy would be guilty\nof money laundering if she spent embezzled money on groceries).\n\n 57\n\fcommercial transactions and the evidence failed to show they were conducted to violate\n\n§ 7206 of the tax code. Indeed, Ms. Christy’s loan payments were “open and notorious”\n\nand exposed her illicit income stream. Suba, 132 F.3d at 675.\n\n The Government has not shown that Ms. Christy’s intent to make the loan\n\npayments rested on anything other than her contractual obligation to make them. See\n\nUnited States v. McGahee, 257 F.3d 520, 527-28 (6th Cir. 2001) (overturning money\n\nlaundering convictions for payments on residence, personal loan, and car loan). She did\n\nnot run the transaction through a third party, as in Crader. 2001 WL 872711 at 1. She\n\ndid not lie about the source of the money, as in Zanghi. 189 F.3d at 76. Nor did she use\n\na corporate affiliate to disguise the nature of her transactions, as in both Crader, 2001\n\nWL 872711 at 1, and Zanghi, 189 F.3d at 76. Indeed, she made no representations\n\nregarding the source of the cash for her loan payments.26 Nothing about the payments\n\nsuggests they were made with the intent to further her tax fraud. See Zanghi, 189 F.3d at\n\n78-79.\n\n b. False tax return not evidence of specific intent\n\n The Government is left with its second argument—that Ms. Christy “clearly had\n\nno intent to report the substantial increase in her income as a result of her embezzlement\n\n\n\n 26\n The dissent argues that Ms. Christy’s cash payments made her transactions\n“difficult to trace” and allowed her “to obscure the source of the funds.” Dissent Op. at\n14. But the Aliceville Bank recorded every one of the Christys’ transactions. As a result,\nthe Government was able to obtain a full record of her deposits and introduce it at trial—\napparently, the cash payments were “[easy] to trace.”\n\n\n 58\n\ffrom CNB, as evidenced by her failure to report the proceeds from her embezzlement as\n\nincome.” Aplee. Br. at 40.27 In denying Ms. Christy’s motion for acquittal, the district\n\ncourt similarly relied on Ms. Christy’s “intent to file a false income tax return in violation\n\nof 26 U.S.C. § 7206(1).” ROA, Vol. I at 337.\n\n The Government relies on Zanghi’s declaration that “[e]vidence that a taxpayer\n\nfiled returns knowing that he should have reported more income than he did is sufficient\n\nto support a finding of willful intent to defeat and evade taxes.” 189 F.3d at 78. But the\n\nquoted passage came in Zanghi’s discussion of the district court’s jury instruction error\n\non the requisite mens rea for 26 U.S.C. § 7201, not a discussion of the specific intent\n\nrequirement of § 1956(a)(1)(A)(ii). See id. It is therefore inapplicable to the question\n\npresented here.\n\n Ms. Christy’s failure to report income on her tax filings does not show that she\n\nmade the loan payments with the purpose of evading taxes. It shows she evaded taxes.\n\n\n\n 27\n As noted above, the loan payments occurred between March 17, 2014, and May\n12, 2014. To the extent the Government’s argument may stem from Ms. Christy’s filing\nher 2014 return on March 12, 2015, it points to no evidence that the loan payments were\nmade to facilitate filing a false return or that her mental state 10 months after the loan\npayments were made would tell the jury anything about her subjective thoughts when she\npaid the loans, much less establish specific intent.\n To the extent the Government may wish to rely on Ms. Christy’s loan payments\nhappening at around the time when she filed her 2013 tax return, the jury would have to\ninfer she was thinking about her taxes when she paid the loans, and then would have to\ninfer from that inference that she paid the loans so that she could file a false return the\nnext year. But this would be based on speculation and the “piling [of] inference upon\ninference” that fails to establish sufficiency. Rufai, 732 F.3d at 1188.\n We further note that the Government has not explicitly made these arguments.\n\n\n 59\n\fCongress made Ms. Christy’s failure to report income on tax returns a separate crime\n\nunder 26 U.S.C. § 7206(1), and she was sentenced for each of her six violations of that\n\nstatute. She also was sentenced for her bank embezzlement in violation of 18 U.S.C.\n\n§ 656. Apart from the evidence of those crimes, the Government (and the dissent) cannot\n\npoint to evidence that shows Ms. Christy’s specific intent to further her tax fraud by\n\nengaging in specified financial transactions, as required for a violation of\n\n§ 1956(a)(1)(A)(ii). Accepting the Government’s argument would require us to hold that\n\nevery cash payment made with ill-gotten funds amounts to money laundering, provided\n\nthe defendant also fails to report those funds when filing a tax return the next year.28\n\n We decline to adopt such a sweeping interpretation. Instead, as we have done\n\nunder other subsections of § 1956, we “reject the government’s argument that the money\n\nlaundering statute should be interpreted to broadly encompass all transactions, however\n\nordinary on their face, which involve the proceeds of unlawful activity.” Sanders, 928\n\nF.2d at 946.\n\n * * * *\n\n\n\n\n 28\n The dissent argues that “it is the repeated making of loan payments with illicit\nfunds and the repeated failure to report those funds as income on her tax returns from\nwhich the jury could have reasonably inferred (as it did) that she made the subject loan\npayments with illicit funds so as not to have to report those funds as income.” Dissent\nOp. at 13-14 (emphasis in original). This argument fails to explain why the loan\npayments are any different from repeated car payments, repeated grocery store trips,\nrepeated electric bill payments, or any other repeated payment that we would otherwise\nconsider “money spending.” See Garcia-Emanuel, 14 F.3d at 1474.\n\n\n 60\n\f The Government has produced insufficient evidence that a purpose for Ms.\n\nChristy’s making the loan payments was to file false tax documents or to hide income\n\nfrom the IRS. Nothing about the loan payments concealed the source of the funds. She\n\nembezzled funds, filed false returns, and knowingly used embezzled funds to pay loans.\n\nBut because the Government failed to produce adequate specific intent evidence, the loan\n\npayments were money spending, not money laundering. Accordingly, we reverse Ms.\n\nChristy’s money laundering convictions.29\n\n C. False Bank Entries—Jury Instruction\n\n Ms. Christy challenges her false bank entry convictions, arguing that the district\n\ncourt erred in failing to include a “materiality” element in its instruction to the jury. But\n\neven assuming 18 U.S.C. § 1005, the false bank entry statute, requires proof of a\n\n“materiality” element, we conclude that the district court’s omission in this instance was\n\nharmless because Ms. Christy’s false entries were material.\n\n1. Legal Background\n\n Federal law provides that “[w]hoever makes any false entry in any book, report, or\n\nstatement of [a federally insured] bank . . . with intent to injure or defraud such bank . . .\n\nor to deceive any officer of such bank” is guilty of making a false bank entry. 18 U.S.C.\n\n§ 1005.\n\n\n 29\n A sufficiency of the evidence challenge requires a court to determine whether\nthe evidence was sufficient to prove what the law requires to constitute an offense.\nDrawing from Tenth Circuit and out-of-circuit cases, we have carefully spelled out what\nthe law requires to prove the specific intent element of tax-based money laundering. The\ndissent cites no authority for its money laundering analysis and does not even mention the\nterm “specific intent”—the mens rea the Government was required to prove.\n 61\n\f The statute does not expressly state a materiality requirement. See id. But even\n\nwhen a statute includes an implied materiality element, a district court’s failure to instruct\n\nthe jury on that element is harmless if “the record contains [no] evidence that could\n\nrationally lead to a contrary finding with respect to the omitted element.” See Neder\n\nv. United States, 527 U.S. 1, 19 (1999).\n\n Materiality is an objective inquiry. See TSC Indus. v. Northway, Inc., 426 U.S.\n\n438, 445 (1976) (“The question of materiality . . . is an objective one.”); United States\n\nv. Irvin, 682 F.3d 1254, 1267 (10th Cir. 2012) (describing “materiality in the bank fraud\n\ncontext as an objective quality”). A false statement is material when it has “a natural\n\ntendency to influence, or [is] capable of influencing, the decision of the decisionmaking\n\nbody to which it was addressed.” United States v. Gaudin, 515 U.S. 506, 509 (1995)\n\n(quotations omitted). In assessing materiality, courts ask three questions:\n\n (1) What statement was made?\n\n (2) What decision was the decision maker considering?\n\n (3) Was the statement capable of influencing the relevant decision?\n\nUnited States v. Williams, 865 F.3d 1302, 1310 (10th Cir. 2017) (interpreting\n\n“materiality” under the bank fraud statute, 18 U.S.C. § 1344). In Williams, we found that\n\nthe defendant’s false statements in a loan application were material even though the bank\n\nultimately did not issue him the loan because his “misrepresentations were capable of\n\ninfluencing the bank’s decision.” Id. at 1314 (emphasis added).30\n\n\n 30\n In Neder, the Supreme Court held that the bank fraud statute, 18 U.S.C. § 1344,\nrequires proof of materiality. 527 U.S. at 25.\n 62\n\f2. Additional Background\n\n Ms. Christy’s false bank entry convictions concerned her six false “sales” of cash\n\nfrom CNB Burlington to the FRB. She filled out and signed “cash-out” tickets that\n\nmisrepresented the amount of money CNB Burlington had sent to the FRB. Her false\n\nsales to the FRB contained discrepancies of:\n\n  $297,000 (Count 2)\n\n  $400,000 (Count 3)\n\n  $562,000 (Count 4)\n\n  $270,000, $225,000, and $225,000 (collectively, Count 5)\n\n  $300,000 (Count 6)\n\n  $680,000 (Count 7)\n\nMs. Nabus discovered Ms. Christy’s errors and prompted her to correct them, which she\n\neventually did.\n\n At trial, Ms. Christy objected to the jury instruction on the false bank entry\n\ncharges, arguing that it should have included a requirement that “the [false bank] entry\n\nwas material.” ROA, Vol. I at 52. She did not provide a suggested definition of\n\n“material.” The district court overruled the objection and instructed the jury that it must\n\nfind four elements to convict Ms. Christy of violating 18 U.S.C. § 1005:\n\n (1) CNB was a federally insured bank.\n\n (2) Ms. Christy made a false entry in a book, record, or statement of CNB.\n\n (3) Ms. Christy knew the entry was false when she made it.\n\n\n 63\n\f (4) Ms. Christy made the false entry with the intent to deceive an officer of CNB.\n\n3. Standard of Review\n\n “[W]e review the jury instructions de novo and view them in the context of the\n\nentire trial to determine if they accurately state the governing law and provide the jury\n\nwith an accurate understanding of the relevant legal standards and factual issues in the\n\ncase.” United States v. Kalu, 791 F.3d 1194, 1200-01 (10th Cir. 2015) (quotations\n\nomitted). “In doing so, we consider whether the district court abused its discretion in\n\nshaping or phrasing . . . a particular jury instruction and deciding to give or refuse a\n\nparticular instruction.” Id. (quotations omitted).\n\n When a jury instruction erroneously omits an element of the offense, the\n\ngovernment must prove harmless error by showing “beyond a reasonable doubt that the\n\nerror complained of did not contribute to the verdict obtained.” Neder, 527 U.S. at 15.\n\nAn error is harmless when “the omitted element was uncontested and supported by\n\noverwhelming evidence, such that the jury verdict would have been the same absent the\n\nerror.” Id. at 17.\n\n4. Analysis\n\n Neither the Supreme Court nor this court has addressed whether the false bank\n\nentry statute, 18 U.S.C. §1005, requires proof of materiality. Even if it does and if the\n\ndistrict court erred in not instructing the jury on materiality, the Government can show\n\n“beyond a reasonable doubt that the error complained of did not contribute to the verdict\n\nobtained.” Neder, 527 U.S. at 15 (quotations omitted).\n\n\n\n 64\n\f Ms. Christy’s false bank entries were plainly material. They reported sales to the\n\nFRB containing discrepancies of between $297,00031 and $680,000, and she signed the\n\ntickets and attempted to incorporate these discrepancies into the Bank’s records. On the\n\nday of the audit, the vault should have contained $883,320. Mr. Snook testified that the\n\nvault’s records showed it contained between $750,000 and $1,000,000 in the months\n\nleading up to the audit. Thus, even the smallest of the discrepancies ($297,000) in Ms.\n\nChristy’s entries constituted more than 25 percent of the branch’s total reported cash\n\nreserves—hardly immaterial. These facts are uncontroverted. Ms. Christy does not point\n\nto any countervailing evidence suggesting her false entries were immaterial. See Neder,\n\n527 U.S. at 17.\n\n Burlington CNB reasonably relied on these statements to maintain its records and\n\nmanage cash reserves. Although Ms. Nabus promptly caught Ms. Christy’s errors, as in\n\nWilliams, Ms. Christy’s “misrepresentations were capable of influencing the bank’s\n\ndecision[s].” 865 F.3d at 1314. At trial, Bank employees, including Mr. Snook, testified\n\nthat they make business decisions based on the amount of cash in the vault at a given\n\ntime. Leading up to the audit, he believed the Bank had too much money in its vault. If\n\nhe had known the vault held only $119,320, it is implausible and inconceivable that he\n\nwould have asked the Bank to reduce its reserves by approximately $400,000. Indeed,\n\n\n\n\n 31\n The smallest single false entry was $225,000, but that entry was combined with\ntwo others in Count Five, for a total of $720,000. But whether we consider $225,000 or\n$297,000 to be Ms. Christy’s smallest discrepancy, our materiality analysis is the same.\n 65\n\fsuch a reduction would have been impossible. To say that losing one quarter of its cash\n\nreserves is not capable of influencing a bank’s decisionmakers defies reason.\n\n The verdict was “supported by overwhelming evidence.” See Neder, 527 U.S. at\n\n17. The Government can show beyond a reasonable doubt that a jury instruction as to\n\nmateriality would not have affected the outcome at trial. See id. We therefore affirm Ms.\n\nChristy’s false bank entry convictions.\n\n III. CONCLUSION\n\n In sum, we (1) reject Ms. Christy’s prosecutorial misconduct challenge because\n\nshe has not shown the prosecutor’s comments influenced the jury’s verdict; (2) reverse\n\nMs. Christy’s money laundering convictions because the Government did not produce\n\nsufficient evidence of the intent to file a false tax return; and (3) affirm Ms. Christy’s\n\nfalse-bank-entry convictions because, even assuming materiality is an implied element of\n\n18 U.S.C. § 1005, its omission from the jury instruction was harmless error. We remand\n\nto the district court with instructions to vacate the convictions for money laundering,\n\nresentence the defendant, and proceed in accordance with this opinion.\n\n\n\n\n 66\n\fCase No. 17-3122 United States v. Christy\nO’BRIEN, J., concurring in part, dissenting in part.\n\n I agree with the Majority’s opinion in all respects but two.\n\n First, it says reversing the money laundering counts (incorrectly, in my view1)\n\nexcuses any need to address an issue warranting decision. The issue is whether the\n\ndistrict judge erred in failing “to address [Christy] personally” regarding allocution.\n\n\n\n\n 1\n The Majority concludes a remand for resentencing is warranted based on its\nreversal of the money laundering counts (Counts 18-23). While I disagree with the\nreversal (my second point), it does not require a resentencing hearing. A simple\namendment to the judgment voiding the money laundering counts would suffice, leaving\nthe allocution issue viable.\n Christy’s advisory sentencing guideline range was calculated based exclusively on\nthe bank embezzlement count which, as a result of grouping under USSG § 3D1.2,\ncomment. (n.6), resulted in an advisory guideline range of 46 to 57 months imprisonment\non all counts except the declaring false tax returns counts, which carried a statutory\nmaximum sentence of 36 months, see 26 U.S.C. § 7206(1). The judge sentenced Christy\nto (1) 51 months imprisonment and three years of supervised release on the bank\nembezzlement and false bank entries counts, (2) 51 months in prison and three years of\nsupervise release on the money laundering counts, and (3) 36 months imprisonment and\none year of supervised release on the false tax returns counts. He ordered the sentences\nto run concurrent with each other. As a result, Christy’s sentence will remain 51 months\nin prison and three years of supervised release even without the money laundering counts.\nMoreover, although the judge ordered restitution in the amount of $857,708, that amount\narose solely from the bank embezzlement and filing false tax returns counts. The money\nlaundering counts played no role in that calculation.\n Theoretically, on resentencing the judge could vary downward from the advisory\nguideline range because the money laundering counts are no longer part of the equation.\nBut my review of the record reveals Christy’s sentence—both the guideline range and the\nultimate sentence—to rest on the embezzlement/false bank entries counts, with the other\ncounts as mere tag-alongs. A variance might, in theory, be conceivable, but it appears\nhighly improbable in the penetrating light of reality.\n Moreover, should another opportunity to allocute be appropriate at re-sentencing I\nhave every confidence that the district judge would be accommodating. Other than\njustifying a refusal to decide the allocution issue, I see no reason for us to insist upon a\nsecond opportunity to allocute or even mention it.\n\f(Majority Op. at 2 n.1 (quotations marks omitted)). The trial judge adequately addressed\n\nand advised her, and we should say so.\n\n The issue was fully briefed and argued. I disagree with Christy’s assumption of\n\nerror and even more so with her undifferentiated reading of United States v. Bustamante-\n\nConchas, 850 F.3d 1130 (10th Cir. 2017) (en banc). The judge personally addressed\n\nChristy, first informing her of the right to speak and then offering her that opportunity.\n\nShe said she understood her right to allocute and later, through counsel, declined the\n\ninvitation. As I will later fully explain, Christy’s allocution rights were not abused and\n\nBustamante-Conchas does not inform this debate; it involved the complete denial of\n\nallocution.\n\n Second, the government produced sufficient evidence to convict Christy of tax-\n\nbased money laundering. Her repeated use of illicitly obtained funds to pay down her\n\nloans and her repeated failure to report those funds as income on her tax returns\n\ndemonstrate one of her purposes (intent), if not the principle one, was to violate the tax\n\nlaws. See United States v. Zanghi, 189 F.3d 71, 78-79 (1st Cir. 1999). In concluding\n\notherwise, the Majority fails to consider evidence and reasonable inferences to be drawn\n\ntherefrom, which adequately support the jury’s verdict. The Majority’s reasoning also\n\nconflates tax-based money laundering under 18 U.S.C. § 1956(a)(1)(A)(ii) with\n\nconcealment-based money laundering under 18 U.S.C. § 1956(a)(1)(B)(i).\n\n A. Allocution\n\n The common law recognized a defendant’s right to allocute at sentencing. That\n\nright required “the defendant [to] be personally afforded the opportunity to speak before\n\n\n -2-\n\fimposition of sentence.” Green v. United States, 365 U.S. 301, 304 (1961) (“As early as\n\n1689, it was recognized that the court’s failure to ask the defendant if he had anything to\n\nsay before sentence was imposed required reversal.”). Federal Rule of Criminal\n\nProcedure 32(i)(4)(A)(ii) codifies the right: “Before imposing sentence, the court must . .\n\n. address the defendant personally in order to permit the defendant to speak or present any\n\ninformation to mitigate the sentence.”2 Christy claims the judge violated the rule. He did\n\nno such thing. She waived her right to allocute.\n\n At the beginning of the sentencing hearing, the judge personally and directly\n\naddressed Christy:\n\n You do have a right—under the rule that governs this hearing, you have a right to\n make a statement. You are not required to make a statement, but you do have that\n right. And later in the hearing, I’ll call on you to hear any statement you choose to\n make. Make sense to you?\n\n(R. Vol. 3 at 977.) She indicated she understood. As promised, later in the hearing the\n\njudge returned to Christy’s right to make a statement: “So now, Mr. Biebighauser\n\n[defense counsel], I turn to the question of an allocution statement. Does Ms. Christy\n\n\n\n 2\n The rule explains, in clear language, why addressing the defendant is necessary:\n“in order to” permit the defendant to speak or present information in mitigation. “In\norder to” could also be phrased as “so that.” See\nhttps://www.thesaurus.com/browse/in%20order%20to. Either way the language requires\na one-on-one exchange between the judge and the defendant and then it explains why a\npersonal communication is necessary—so the defendant may allocute, if she wishes. I\nam at a loss to divine some coded message requiring anything more. The judge met the\ncall—he explained the purpose of allocution to Christy, one on one, in words she could,\nand did, understand. He later afforded her the opportunity to do so.\n It would be better for the judge to speak directly to the defendant throughout the\nexchange, rather than relying on counsel. But it is beyond our ken to impose best\npractices; our office is only to insure the minimum requirements of the rule are met.\n\n\n -3-\n\fwish to make a statement in the nature of allocution at this time?” (Id. at 1012 (emphasis\n\nadded).) Significantly, the question to counsel was not, “Do you have something more to\n\noffer?” Instead, and clearly, it was, “Does your client want to make a statement?” The\n\nattorney responded, “No, Judge.” (Id.) In light of that abundantly clear answer, the judge\n\nconcluded, “All right. Then the record should show that she has waived that\n\nopportunity.” (Id. (emphasis added).) Neither Christy nor her attorney uttered a word of\n\nprotest. The judge was right; the waiver was complete.\n\n I can envision only two possible claims of error. Perhaps, with Christy at his side,\n\ndefense counsel flagrantly lied to the judge, something we ought be loath to presume,\n\nespecially on a sparse record. Perhaps it was a miscommunication between Christy and\n\ncounsel. In either event, Christy’s remedy, if any, should be grounded in post-conviction\n\nreview under 28 U.S.C. § 2255 where the salient issue—was counsel ineffective,\n\nwillfully or otherwise—can be addressed on a fully developed record.3 Unless we\n\npresume counsel cannot answer a binary question for his client (and in her presence),\n\nfacts matter: sometimes they really matter and are easily obtained. If her lawyer\n\naccurately relayed her answer (“I do not want to make a statement”) to the judge, she\n\nwaived a known right. An intricate dance to the rhythm of Fed. R. Crim. P.\n\n32(i)(4)(A)(ii) is unnecessary, entertaining as it may be.\n\n\n\n 3\n While, on its own, “an allocution error does not provide grounds for habeas\nrelief,” Bustamante-Conchas, 850 F.3d at 1135 n.1, an attorney’s deficient representation,\nif prejudicial, may. Indeed, ineffective assistance of counsel claims should generally be\nbrought in collateral proceedings, rather than on direct appeal. United States v.\nGalloway, 56 F.3d 1239, 1240-41 (10th Cir. 1995) (en banc).\n\n\n -4-\n\f But even ignoring her waiver, Christy’s failure to object at sentencing entitles her\n\nonly to plain error review. Bustamante-Conchas, 850 F.3d at 1137 (reaffirming that\n\nunpreserved allocution errors are subject to plain error review). She admits as much,\n\narguing the judge plainly erred in failing to comply with Rule 32(i)(4)(A)(ii). The\n\ngovernment concedes the first three prongs of plain error review—(1) error, (2) that is\n\nplain, which (3) affects substantial rights—are satisfied. Id. (setting forth the four prongs\n\nof plain error review). As a result, Christy focuses on the fourth prong, which, absent\n\ntwo “unusual circumstance[s],” is satisfied by a complete denial of allocution. Id. at\n\n1142. Because the unusual circumstances Bustamante-Conchas mentioned in its analysis\n\nof the fourth prong are not present here, she presumes the judge committed plain error.\n\nBut Bustamante-Conchas has no place in our reckoning. It involved the complete denial\n\nof allocution. This case, on the other hand, does not. Even under plain error review she\n\nfails on all prongs.4\n\n For an error to be plain, it must be “clear [or obvious] at the time of the appeal.”\n\nUnited States v. Smith, 815 F.3d 671, 675 (10th Cir. 2016); see also United States v.\n\nWolfname, 835 F.3d 1214, 1221 (10th Cir. 2016). An error is clear or obvious “when it is\n\ncontrary to well-settled law.” Smith, 815 F.3d at 675 (quotation marks omitted). “For us\n\nto characterize a proposition of law as well-settled, we normally require precedent\n\ndirectly in point from the Supreme Court or our Circuit or a consensus in the other\n\n\n 4\n Although the government conceded the first three prongs of plain error review\nwere satisfied, “[w]e possess the discretion to reject what is, in effect, a stipulation on a\nquestion of law by the government.” Bustamante-Conchas, 850 F.3d at 1141 n.7\n(quoting U.S. Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 (1993)).\n\n\n -5-\n\fcircuits.” Id. (emphasis added). Bustamante-Conchas is not on point.\n\n Stare decisis, a venerable tenet of the common law, has been carefully woven into\n\nAmerican jurisprudence. Rightfully so; it serves important purposes. Among others, it is\n\negalitarian—the law, once announced, does not change, case by case. It also makes the\n\nlaw predictable—reliance on stable law enables people and legal entities to comfortably\n\nplan their affairs. It is efficient—eliminating the need to repeatedly offer a detailed\n\nexplanation for a proposition earlier laid to rest. But, if not carefully applied, it can\n\npervert otherwise admirable ends. In the words of Justice Cardozo: “Judges march at\n\ntimes to pitiless conclusions under the prod of a remorseless logic which is supposed to\n\nleave them no alternative. They deplore the sacrificial rite. They perform it, none the\n\nless, with averted gaze, convinced as they plunge the knife that they obey the bidding of\n\ntheir office.” Benjamin N. Cardozo, The Growth of the Law 66 (1924).\n\n Relief from stifling regularity lies in another tenet of the common law, also\n\ncarefully woven into American jurisprudence. In applying precedent, judges may,\n\nsometimes must, distinguish the case at bar from an earlier one, which, at least\n\nseemingly, announces a hard and fast rule. Doing so restricts like treatment to genuinely\n\nlike matters. That lesson is a worthy one, well-illustrated by cases in another context\n\n(qualified immunity) decrying similarities drawn at a high level of generality. See, e.g.,\n\nKisela v. Hughes, __ U.S. __, 138 S. Ct. 1148, 1152 (2018); District of Columbia v.\n\nWesby, __ U.S. __, 138 S. Ct. 577, 590 (2018); Ashcroft v. al-Kidd, 563 U.S. 731, 742\n\n(2011).\n\n\n\n\n -6-\n\f In summary and practice, the threads of stare decisis are appropriately entangled\n\nwith the opposing, but no less imposing, threads of exception. When applied together in\n\na principled way, they are the warp and the woof of a legal tapestry and together they\n\nameliorate the risk of unintended consequences.\n\n In Bustamante-Conchas, neither before nor after announcing a tentative sentence\n\ndid the judge “‘address the defendant personally in order to permit [him] to speak or\n\npresent any information to mitigate the sentence.’” 850 F.3d at 1137 (quoting Fed. R.\n\nCrim. P. 32(i)(4)(A)(ii)). As the en banc court made clear no less than six times, that\n\ncase involved the “complete denial of allocution.” Id. at 1133-34, 1138, 1140, 1142,\n\n1144. A complete denial of allocution satisfies the first two prongs of plain error review,\n\nit said, because it is contrary to well-settled law from our Circuit as well as the Supreme\n\nCourt which requires a judge to afford the defendant an opportunity to personally speak\n\non his own behalf prior to imposition of the sentence. Id. at 1137-38 (citing Hill v.\n\nUnited States, 368 U.S. 424, 426 (1962), and United States v. Landeros-Lopez, 615 F.3d\n\n1260, 1264 (10th Cir. 2010)). We also decided a complete denial of allocution will\n\ngenerally satisfy the third and fourth prongs of plain error review except in some\n\nspecifically-delineated circumstances. Id. at 1140, 1142-43. This markedly different\n\ncase is not within its orisons.\n\n Here, Christy could have, had she chosen to do so, “personally engage[d]” with\n\nthe judge, presenting “mitigating circumstances” and “personal characteristics” which\n\nwould have “enable[d] [him] to craft an individualized sentence” and “avoid[ed] the\n\nappearance of . . . assembly-line justice.” Id. at 1136 (quotation marks omitted) (noting\n\n\n -7-\n\fthe important ends served by allowing a defendant to personally address the sentencing\n\ncourt). With full knowledge of her right to allocute, she, in the presence of and through\n\nher attorney, simply declined to do so.\n\n That the judge posed the question of allocution to defense counsel, rather than\n\nChristy, is of no moment when placed in context. “Rule 32 provides a defendant with\n\ntwo rights: ‘to make a statement in his own behalf, and to present any information in\n\nmitigation of punishment.’” Id. at 1135 (quoting Green, 365 U.S. at 304). “Because the\n\nformer entitlement is necessarily personal,” we said, “a district court cannot discharge its\n\nduties under Rule 32 by permitting counsel to offer argument in mitigation” as even “‘the\n\nmost persuasive counsel may not be able to speak for a defendant as the defendant might,\n\nwith halting eloquence, speak for himself.’” Id. at 1135-36 (quoting Green, 365 U.S. at\n\n304). In this case, even though the judge asked counsel whether Christy wished to\n\nallocute, the invitation was personal to her—“Does Ms. Christy wish to make a statement\n\nin the nature of allocution at this time?” (R. Vol. 3 at 1012 (emphasis added).) In other\n\nwords, the judge was offering Christy the opportunity to personally address him, not\n\nmerely asking if counsel wanted to speak on her behalf.5 And because the invitation to\n\n\n 5\n Christy suggests an allocution query directed at counsel is insufficient. In\naddition to Green and Bustamante-Conchas, she relies on United States v. Adams, 252\nF.3d 276, 279 (3d Cir. 2001). But Adams hardly represents a “consensus” in the other\ncircuits necessary to constitute “well-settled law” for purposes of satisfying the first and\nsecond prongs of plain error review. See Smith, 815 F.3d at 675 (quotation marks\nomitted). In any event, after ruling on Adams’ objections to the presentence report, the\njudge asked, “Anything else?” 252 F.3d at 278 (quotation marks omitted). Defense\ncounsel replied, “Do you want to hear me as far as sentencing is concerned?” Id.\n(quotation marks omitted). The judge responded, “I want to hear what you want to say\nabout that, of course. And then I want to hear if the remorseful defendant has anything\n\n -8-\n\fspeak (and Christy’s response) came before the judge announced the sentence, tentative\n\nor otherwise, no error occurred, much less plain error. See United States v. Valdez-\n\nAguirre, 861 F.3d 1164, 1165 (10th Cir. 2017) (“By definition, allocution is to take place\n\nbefore the sentence is imposed. Otherwise, the defendant would have little to gain from\n\nmaking a statement.”).\n\n In Bustamonte-Conchas, we decided a defendant need not proffer a proposed\n\nallocution statement in order to satisfy the fourth prong of plain error review. 850 F.3d at\n\n1143-44. We concluded such written statement could not adequately portray the\n\ndefendant’s “sincerity and credibility” or “speak for a defendant as the defendant might,\n\nwith halting eloquence, speak for himself.” Id. at 1136, 1144 (quotation marks omitted).\n\nBut we need not fret over the difficulty of deciding what Christy might have said, had she\n\ndecided to speak, or its probable impact on the sentencing judge. Those issues are\n\n\nhe wants to say.” Id. (quotation marks omitted). After defense counsel and the\ngovernment presented their arguments, the judge then asked defense counsel, “Okay.\nWould your client like to exercise his right of allocution?” Id. (quotation marks omitted).\nCounsel said “No.” Id. (quotation marks omitted).\n The Third Circuit concluded the judge’s allocution query was insufficient because\n“the Supreme Court has held that [an allocution] query, directed towards counsel, does\nnot satisfy the requirement that the district court personally address the defendant\nhimself.” Id. at 279. In support, the Adams court cited Green. Id. But, in Green, the\nsentencing court merely asked, “Did you want to say something?” and it was unclear\nfrom the record whether the question was directed to defendant or counsel. 365 U.S. at\n302, 304-05 (quotation marks omitted). The Court admonished that “merely affording\ndefendant’s counsel the opportunity to speak [would not] fulfill[] . . . Rule 32” and\n“[t]rial judges before sentencing should, as a matter of good judicial administration,\nunambiguously address themselves to the defendant.” Id. at 304-05 (emphasis added). In\nthis case, the judge did not merely afford defense counsel the opportunity to speak on\nChristy’s behalf. Instead, he expressly told Christy of her right to speak and later\nextended her a personal invitation to speak prior to imposing sentence. Defense counsel\nwas merely the intermediary.\n\n\n -9-\n\fnowhere present here. This case involves not what might have been said, or how. The\n\nonly issue is whether defense counsel lied or otherwise erred. This is a run of the mill\n\nissue uniquely suited to a § 2255 proceeding where the rubber meets the road and facts,\n\nnot presumptions, prevail.\n\n We should treat this issue for what it is—a contrived “gotcha” moment—raised for\n\nthe first time on appeal and being milked for leverage. If counsel was ineffective,\n\nresulting in a waiver of his client’s rights, the remedy lies with a 28 U.S.C. § 2255\n\nmotion. Otherwise, it should suffer a quiet demise.\n\n B. Money Laundering\n\n In Counts 18-23, Christy was charged and convicted of tax-based money\n\nlaundering, 18 U.S.C. § 1956(a)(1)(A)(ii), based on six cash deposits she made to two\n\nloan accounts from March 17, 2014, to May 12, 2014 (“the loan payments”). The jury\n\nwas told that to convict Christy of these counts, it must find, beyond a reasonable doubt,\n\nshe made the loan payments with funds she knew were proceeds from her bank\n\nembezzlement and “with the intent to engage in conduct constituting a violation of\n\nsection 7201 and 7206 of the Internal Revenue Code of 1986.” (R. Vol. 1 at 224, 226,\n\n228, 230, 232, 234.) The money laundering instructions did not define what conduct was\n\nprohibited by §§ 7201 and 7206.\n\n But Christy was also indicted with six counts (Counts 8-13) of declaring false tax\n\nreturns for tax years 2009-2014 in violation of § 7206 of the Internal Revenue Code.\n\nWith regard to those counts, the jury was instructed § 7206 “makes it a crime for anyone\n\nwillfully to make a false material statement on an income tax return.” (Id. at 204, 206,\n\n\n - 10 -\n\f208, 210, 212, 214.) The false statement in this case was underreporting her income by\n\nfailing to include her embezzled funds as income. Melding these instructions with those\n\nrelating to the money laundering counts, the jury was told not to convict Christy of\n\nmoney laundering, unless it found, beyond a reasonable doubt, the loan payments were\n\nmade with funds she knew to be proceeds from her bank embezzlement and with the\n\nintent not to report those funds as income on her tax returns.\n\n Unlike in the district court, Christy does not here dispute the sufficiency of the\n\nevidence demonstrating the loan payments to have been made with funds she knew were\n\nembezzled. She now contends only that the evidence was insufficient to show the loan\n\npayments were made with the intent to avoid reporting the embezzled funds as income on\n\nher 2015 tax return. The Majority agrees, saying the government’s evidence failed to\n\nshow Christy made the loan payments with any intent other than to satisfy her contractual\n\nobligation to make them. It relies in large part on the neither unusual nor suspicious (in\n\nsize or frequency) nature of the loan payments and the absence of any overtly\n\nconspicuous attempt by Christy to disguise or conceal the payments. In the end, the\n\nMajority concludes the government’s evidence proved no more than the payments were\n\nmade with illicit funds, which is “money spending” not “money laundering.” I see it\n\ndifferently.\n\n As stated above, in addition to the money laundering counts, Christy was charged\n\nwith six counts of declaring false tax returns for tax years 2009-2014. These counts were\n\nbased on her failure to report over $400,000 in embezzled funds as income on those\n\nreturns. In support of these counts, the government presented the testimony of an IRS\n\n\n - 11 -\n\fagent who examined her bank accounts as well as her tax returns during that time period.\n\nThe examination revealed Christy and her husband having made over $400,000 in\n\nunexplained cash deposits to their bank accounts, including to their loan accounts, all of\n\nwhich they failed to report as income on their 2009-2014 tax returns. The jury convicted\n\nChristy on these counts. As a result, the jury had before it evidence that at the time she\n\nmade the loan payments which formed the basis for Counts 18-23 (March-May 2014),\n\nshe had four times before (2009-2012) made similar payments with funds she failed to\n\nreport as income. Not only that, at about the same time she made the March-May 2014\n\nloan payments, she filed her 2013 return, which also failed to report the funds used to pay\n\ndown her loans as income. Her systematic and repeated conduct permits a reasonable\n\ninference that her purpose in making the March-May 2014 loan payments was to make\n\nuse of embezzled funds without revealing their source and the accompanying purpose of\n\nnot reporting the funds as income on her 2014 tax return (which would have necessarily\n\naroused suspicion about her embezzlement), i.e., to file a false tax return.\n\n The Majority myopically discounts this evidence, saying Christy’s failure to report\n\nthe loan payments as income on her 2014 tax return does not show she made them with\n\nthe purpose of evading taxes. Were it to find otherwise, it says, then every cash payment\n\nwith ill-gotten funds amounts to money laundering, provided the defendant also fails to\n\nreport those funds when filing a tax return the next year. Not so. It is the intent to violate\n\nthe tax laws which differentiates simply making a cash payment with illicit funds (money\n\nspending) with money laundering. Admittedly, a single failure to report as income illicit\n\nfunds used in making cash payments might not sufficiently show that a payment made\n\n\n - 12 -\n\fwith those funds was done with an intent to evade taxes. However, multiple failures to\n\nreport, as income, illicit funds so used supports a reasonable inference that such a current\n\npayment was motivated by, or at least included, an intent to avoid reporting those funds\n\nas income. “Past behavior is the best predictor of future behavior.” United States v.\n\nEstrada-Lozano, 221 F. App’x 742, 749 n.9 (10th Cir. 2007) (unpublished). Notably, the\n\njury did not convict Christy of the money laundering counts (Counts 14-17) based on four\n\ncash deposits she made to Loan 7521 in July and September 2011 and in January and\n\nOctober 2012. At the time she made the October 2012 payment, she had filed only three\n\nfalse tax payments (2009-2011); at the time she made the 2011 payments and January\n\n2012 payment, only two (2009-2010).\n\n In a similar vein, the Majority concludes we cannot rely on Christy’s having made\n\nthe loan payments around the time when she filed her 2013 tax return because such\n\nreliance would constitute “speculation and conjecture” and the “piling [of] inference\n\nupon inference” which is not enough to support a conviction. United States v. Rufai, 732\n\nF.3d 1175, 1188 (10th Cir. 2013) (quotation marks omitted). According to it, the jury\n\nwould have to infer Christy was thinking about her taxes when she made the loan\n\npayments and then infer from that inference that she paid the loans so that she could file a\n\nfalse return the next year. But I do not rely solely on the fact she made the loan payments\n\naround the time she filed her 2013 tax return. Rather, it is the repeated making of loan\n\npayments with illicit funds and the repeated failure to report those funds as income on her\n\ntax returns from which the jury could have reasonably inferred (as it did) that she made\n\nthe subject loan payments with illicit funds so as not to have to report those funds as\n\n\n - 13 -\n\fincome. That aside, a reasonable inference could be drawn as to her making the loan\n\npayments around the time she filed her 2013 tax return—at the time she made loan\n\npayments with the embezzled funds, she realized reporting the embezzled funds as\n\nincome would alert authorities to her illegal activities and end her lucrative scheme. She\n\ncould not, with impunity, report those funds as income the next year; following her\n\npattern was essential to avoiding detection, so she acted just as she had in previous years.\n\nIt is quite common, in fact, to think about the tax consequences when conducting a\n\nfinancial transaction (i.e., making a charitable contribution, deciding how much to\n\ncontribute to a retirement plan, or deciding whether to pay off a mortgage). That is the\n\nnature of taxes—activity is generally not reported until the year after it occurs.\n\n The Majority also makes much of the fact that Christy’s deposits were “open and\n\nnotorious” and exposed her illicit income stream. (Majority’s Op. at 57.) I beg to differ.\n\n Each of the loan payments in Counts 18-23 (as well as the other payments not\n\ncharged in the indictment) were made in cash, which is difficult to trace and allowed her\n\nto obscure the source of the funds. Those cash payments eventually caught up to her, but\n\nthey served a clearly intended purpose for several years (and probably would have\n\ncontinued to do so had her embezzlement not been discovered). Concealment and other\n\nsuspicious activity might well serve as proof of an intent to violate the tax laws, but their\n\nabsence, at least in this case, does not demonstrate lack of criminal intent. Rather it\n\nreveals a successful scheme to make the transactions look as “normal” as possible.\n\nMoreover, nothing in the tax-based money laundering provision, 18 U.S.C.\n\n§ 1956(a)(1)(A)(ii), requires such concealment or suspicious activity. In contrast, the\n\n\n - 14 -\n\fconcealment-based money laundering provision, 18 U.S.C. § 1956(a)(1)(B)(i), does.\n\nThat provision, like the tax-based money laundering provision, prohibits a defendant\n\nfrom conducting a financial transaction with property known to represent the proceeds of\n\nsome unlawful activity. However, unlike the tax-based money laundering provision,\n\nwhich requires an intent to violate the tax laws, the concealment-based money laundering\n\nprovision requires the defendant know that the financial transaction was designed in\n\nwhole or in part to conceal or disguise the nature, location, source, ownership, or control\n\nof the proceeds. See 18 U.S.C. § 1956(a)(1)(B)(i). Christy was neither indicted nor\n\nconvicted of the concealment-based money laundering provision.\n\n The jury was presented with abundant evidence and was correctly instructed on\n\nthe law. I see no practical reason to narrow our focus to evidence related to a particular\n\ncount without acknowledging and accounting for established patterns of behavior. I am\n\nsatisfied that the jury did precisely what it was called upon to do: evaluate all of the\n\nevidence and permissible inferences as a whole in arriving at a verdict, count by count. I\n\nwould affirm.\n\n\n\n\n - 15 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368508/", "author_raw": "MATHESON, Circuit Judge."}]}	TYMKOVICH	O'BRIEN	MATHESON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591255/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,256	FREE THE NIPPLE-FORT COLLINS, an Unincorporated Association; Brittiany Hoagland; Samantha Six, Plaintiffs - Appellees, v. CITY OF FORT COLLINS, COLORADO, Defendant - Appellant.	Free the Nipple-Fort Collins v. City of Fort Collins	2019-02-15	17-1103	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Briscoe, Hartz, Phillips", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888014/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888015/", "author_raw": ""}, {"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 15, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n FREE THE NIPPLE-FORT COLLINS, an\n unincorporated association; BRITTIANY\n HOAGLAND; SAMANTHA SIX,\n\n Plaintiffs - Appellees,\n\n v. No. 17-1103\n\n CITY OF FORT COLLINS, COLORADO,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:16-CV-01308-RBJ)\n _________________________________\n\nAndrew D. Ringel of Hall & Evans, L.L.C, Denver, Colorado (Gillian Dale and\nChristina S. Gunn of Hall & Evans, L.L.C., Denver, Colorado; and Carrie Mineart\nDaggett and John R. Duval, Fort Collins City Attorney’s Office, Fort Collins, Colorado,\nwith him on the briefs), for Defendant-Appellant.\n\nAndrew McNulty (David A. Lane with him on the brief), of Killmer, Lane & Newman,\nLLP, Denver, Colorado, for Plaintiffs-Appellees.\n _________________________________\n\nBefore BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n _________________________________\n\n The city of Fort Collins, Colorado, enacted a public-nudity ordinance that\n\nimposes no restrictions on male toplessness but prohibits women from baring their\n\nbreasts below the areola. See Fort Collins, Colo., Mun. Code § 17-142 (2015). In\n\nresponse, Free the Nipple, an unincorporated association, and two individuals,\n\nBrittiany Hoagland and Samantha Six (collectively, “the Plaintiffs”), sued the City in\n\nfederal district court. They alleged (among other things) that the ordinance violated\n\nthe Equal Protection Clause, U.S. Const. amend. XIV, § 1, and they asked for a\n\npreliminary injunction to halt enforcement of the ordinance. The district court agreed.\n\nIt enjoined the City, pending the resolution of the case’s merits, from implementing\n\nthe ordinance “to the extent that it prohibits women, but not men, from knowingly\n\nexposing their breasts in public.” Free the Nipple–Fort Collins v. City of Fort\n\nCollins, 237 F. Supp. 3d 1126, 1135 (D. Colo. 2017). The City then brought this\n\ninterlocutory appeal to challenge the injunction.\n\n The appeal presents a narrow question: Did the district court reversibly err in\n\nissuing the preliminary injunction? We answer no. Exercising interlocutory\n\njurisdiction under 28 U.S.C. § 1292(a)(1), we affirm the district court’s judgment and\n\nremand the case to that court for further proceedings consistent with this opinion.\n\n BACKGROUND\n\n In 2015, after substantial public debate, the Fort Collins city council enacted this\n\npublic-nudity ordinance:\n\n No female who is ten (10) years of age or older shall knowingly appear in\n any public place with her breast exposed below the top of the areola and\n nipple while located: (1) In a public right-of-way, in a natural area, recreation\n area or trail, or recreation center, in a public building, in a public square, or\n while located in any other public place; or (2) On private property if the\n person is in a place that can be viewed from the ground level by another who\n is located on public property and who does not take extraordinary steps, such\n\n 2\n\n as climbing a ladder or peering over a screening fence, in order to achieve a\n point of vantage. . . . . The prohibition [on female toplessness] does not\n extend to women breastfeeding in places they are legally entitled to be.\n\nFort Collins, Colo., Mun. Code § 17-142(b), (d). Any person who violates this\n\nordinance “shall be guilty of a misdemeanor” and “shall be punished” by a fine of up\n\nto $2,650, or up to 180 days in jail, or both. Id. § 1-15(a).\n\n The Plaintiffs immediately sued the City in federal district court, alleging that the\n\npublic-nudity ordinance violates the Free Speech Clause of the First Amendment and the\n\nEqual Protection Clause of the Fourteenth Amendment to the U.S. Constitution, as well\n\nas the Equal Rights Amendment to the Colorado Constitution. Their complaint includes a\n\njury-trial demand and a prayer for relief asking the court (1) to declare the ordinance\n\n“unconstitutional on its face and as applied to [the] Plaintiffs” and (2) to prevent the\n\nordinance’s enforcement. Appellant’s App. vol. 1 at 20. Separately, the Plaintiffs moved\n\nfor a preliminary injunction blocking enforcement of the ordinance and “prohibit[ing]\n\n[the City] from discriminatorily arresting [the] Plaintiffs, and all others similarly situated,\n\nwhen they engage in the protected activity of standing topless in public places in Fort\n\nCollins, Colorado.” Id. at 22.\n\n The City countered with a motion to dismiss arguing that the Plaintiffs had failed\n\nto state any claim on which relief could be granted, see Fed. R. Civ. P. 12(b)(6), and a\n\nresponse to the Plaintiffs’ preliminary-injunction motion. In the latter, the City asserted\n\nthat a preliminary injunction would unfairly burden the public “by exposure to public\n\nnudity” and urged the court to deny the motion. Appellant’s App. vol. 2 at 33.\n\n\n\n 3\n\n The district court first addressed the City’s motion to dismiss. It granted the\n\nmotion on the Plaintiffs’ free-speech claim, agreeing with the City that “topless protests”\n\naren’t protected speech, but allowed the Plaintiffs’ (federal) Equal Protection Clause and\n\n(state) Equal Rights Amendment claims to proceed. Free the Nipple–Fort Collins v. City\n\nof Fort Collins, 216 F. Supp. 3d 1258, 1262 (D. Colo. 2016). Next, the court turned to the\n\nPlaintiffs’ preliminary-injunction motion. After holding a hearing on the matter, it\n\ngranted the motion, ruling that the ordinance likely violated the Equal Protection Clause,1\n\nand issued the requested injunction. Free the Nipple, 237 F. Supp. 3d at 1128. Pending\n\ntrial (or other resolution of the case), the preliminary injunction blocks the City from\n\nenforcing its public-nudity ordinance “to the extent that it prohibits women, but not men,\n\nfrom knowingly exposing their breasts in public.” Id. at 1135.\n\n The City then brought this interlocutory appeal defending the constitutionality of\n\nits public-nudity ordinance and challenging the preliminary injunction.\n\n DISCUSSION\n\n In its appeal, the City asks us to vacate the district court’s preliminary injunction\n\nso that it can fully enforce its public-nudity ordinance.2 The City argues that the\n\n\n 1\n When the district court ruled in the Plaintiffs’ favor, it relied on the federal\nConstitution. The court left the Plaintiffs’ state-law claim, premised on the Colorado\nConstitution’s Equal Rights Amendment, for the Colorado courts to assess. Free the\nNipple, 237 F. Supp. 3d at 1133 n.4; see also Colo. Const. art. II, § 29 (“Equality of\nrights under the law shall not be denied or abridged by the state of Colorado or any of\nits political subdivisions on account of sex.”). In resolving this appeal, we likewise\nconsider only the federal Equal Protection Clause.\n 2\n The City goes further, urging us to “dismiss the Plaintiffs’ equal protection\nclaims in their entirety with prejudice.” Appellant’s Opening Br. at 37. But we lack\n 4\n\nordinance’s unequal treatment of male and female toplessness survives constitutional\n\nscrutiny, making it likely that the Plaintiffs will lose a merits trial and, in the meantime,\n\nprecluding them from getting injunctive relief. Before we address the City’s argument,\n\nwe define our standard of review and explain the rules governing the grant (or denial) of\n\na preliminary injunction. We’ll then apply that framework to determine whether the\n\ndistrict court reversibly erred when it issued the preliminary injunction.\n\nI. Standard of Review\n District courts have discretion over whether to grant preliminary injunctions,\n\nUnited States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt.\n\nConsultants, Inc., 883 F.2d 886, 889 (10th Cir. 1989), and we will disturb their\n\ndecisions only if they abuse that discretion, Fish v. Kobach, 840 F.3d 710, 723 (10th\n\nCir. 2016). A district court’s decision crosses the abuse-of-discretion line if it rests\n\non an erroneous legal conclusion or lacks a rational basis in the record. Id. (quoting\n\nAwad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012)). As we review a district\n\ncourt’s decision to grant or deny a preliminary injunction, we thus examine the\n\ncourt’s factual findings for clear error and its legal conclusions de novo. Id.\n\n\n\n\nauthority to do that until the district court, in the first instance, issues a final order\nresolving the Plaintiffs’ claims. In the meantime, 28 U.S.C. § 1292(a)(1) grants us\ninterlocutory jurisdiction to review only the district court’s preliminary-injunction\norder. That review lets us engage with the merits of the Plaintiffs’ claims, but only to\nthe extent that the merits affect our preliminary-injunction analysis.\n\n 5\n\nII. The Legal Standards Governing Preliminary Injunctions\n\n “A preliminary injunction is an extraordinary remedy, the exception rather\n\nthan the rule.” Enter. Mgmt. Consultants, Inc., 883 F.2d at 888. To succeed on a\n\ntypical preliminary-injunction motion, the moving party needs to prove four things:\n\n(1) that she’s “substantially likely to succeed on the merits,” (2) that she’ll “suffer\n\nirreparable injury” if the court denies the injunction, (3) that her “threatened injury”\n\n(without the injunction) outweighs the opposing party’s under the injunction, and\n\n(4) that the injunction isn’t “adverse to the public interest.” Beltronics USA, Inc. v.\n\nMidwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009).\n\n But courts “disfavor” some preliminary injunctions and so require more of the\n\nparties who request them. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258–59\n\n(10th Cir. 2005). Disfavored preliminary injunctions don’t merely preserve the\n\nparties’ relative positions pending trial. Id. Instead, a disfavored injunction may\n\nexhibit any of three characteristics: (1) it mandates action (rather than prohibiting it),\n\n(2) it changes the status quo, or (3) it grants all the relief that the moving party could\n\nexpect from a trial win. Awad, 670 F.3d at 1125 (citing Summum v. Pleasant Grove\n\nCity, 483 F.3d 1044, 1048–49 (10th Cir. 2007)); see also Phillip v. Fairfield Univ.,\n\n118 F.3d 131, 133 (2d Cir. 1997) (explaining that an injunction is “mandatory” if “its\n\nterms would alter, rather than preserve, the status quo by commanding some positive\n\nact”). To get a disfavored injunction, the moving party faces a heavier burden on the\n\nlikelihood-of-success-on-the-merits and the balance-of-harms factors: She must make\n\n\n\n 6\n\na “strong showing” that these tilt in her favor. Fish, 840 F.3d at 724 (quoting\n\nBeltronics, 562 F.3d at 1071).\n\n On appeal, the City invokes an even higher standard that requires movants who,\n\nlike the Plaintiffs, seek to disturb the status quo to “demonstrate not only that the four\n\nrequirements for a preliminary injunction are met but also that they weigh heavily and\n\ncompellingly in [the movants’] favor.” Appellant’s Opening Br. at 8 (quoting Kikumura\n\nv. Hurley, 242 F.3d 950, 955 (10th Cir. 2001)). But we “jettison[ed]” the heavily-and-\n\ncompellingly requirement over a decade ago. O Centro Espirita Beneficiente Uniao do\n\nVegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (per curiam), aff’d sub nom\n\nGonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006).\n\nToday, “the requirement that a movant requesting a disfavored injunction must make a\n\nshowing that the traditional four factors weigh heavily and compellingly in [the\n\nmovant’s] favor is no longer the law of the circuit.” Schrier, 427 F.3d at 1261.\n\n The preliminary injunction at issue here prevents the City from fully enforcing its\n\npublic-nudity ordinance. In so doing, the district court concluded that the injunction both\n\n“alters the status quo and affords the movants all the relief they could recover at the\n\nconclusion of a full trial on the merits.” Free the Nipple, 237 F. Supp. 3d at 1130. This\n\nconclusion led the district court to apply the heightened disfavored-injunction standard\n\nand to require strong showings from the Plaintiffs on the first and third factors. Id. And\n\nthough we have doubts that the heightened standard applies here, we need not decide\n\n\n\n\n 7\n\nwhich standard to apply—the plaintiffs prevail under the heightened standard and,\n\ntherefore, under both.3\n\nIII. Application\n\n On appeal, the City disputes that the Plaintiffs can prevail on any of the four\n\npreliminary-injunction factors, but its argument hinges on the first factor: the likelihood\n\nthat the Plaintiffs will succeed on the merits. According to the City, all four preliminary-\n\ninjunction factors favor the City because the Plaintiffs lack a viable equal-protection\n\nclaim and will likely lose on the merits. The fate of this preliminary injunction thus turns\n\nlargely, if not entirely, on the strength of the Plaintiffs’ equal-protection claim. But the\n\nCity challenges each preliminary-injunction factor, so we address each (though we focus\n\non the first).\n\n\n 3\n Though the Plaintiffs have not contested the district court’s decision to apply\nthe heightened standard, that decision was likely in error. See Prairie Band of\nPotawatomi Indians v. Pierce, 253 F.3d 1234, 1246–50 (10th Cir. 2001) (explaining\nthat a preliminary injunction falls into the all-the-relief category only if its effect,\n“once complied with, cannot be undone”; here, we probably can put the toothpaste\nback in the tube—if the plaintiffs lose on the merits after a trial, then Fort Collins\nmay fully enforce its public-nudity ordinance (quoting Tom Doherty Assocs., Inc. v.\nSaban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995))); 11A Charles A. Wright &\nArthur R. Miller, Federal Practice & Procedure § 2948 (3d ed. & Nov. 2018 update)\n(defining the status quo as “the last peaceable uncontested status existing between the\nparties before the dispute developed”—which, in this case, would be the status\nexisting before Fort Collins enacted the challenged public-nudity ordinance (internal\nquotation marks and citations omitted)). But here, the error makes no difference:\nLogically, movants who can satisfy the heightened standard must also be able to\nsatisfy the lower standard applicable to typical preliminary injunctions. And because\nwe agree with the district court that the Plaintiffs can satisfy the heightened standard,\nwe conclude that they can also satisfy the ordinary standard, and we decline to delve\nmore deeply into questions not presented here—whether the requested preliminary\ninjunction altered the status quo and whether it gave the Plaintiffs all the relief that\nthey could have won at a full merits trial.\n 8\n\n A. The First Factor: Likelihood of Success on the Merits\n\n The heightened standard applicable to disfavored preliminary injunctions\n\nrequires the Plaintiffs to make a strong showing that their equal-protection claim is\n\nsubstantially likely to succeed on its merits. Fish, 840 F.3d at 723–24. The City\n\ncontests the district court’s conclusion that the Plaintiffs made this showing. That\n\nconclusion, according to the City, reflects “a fundamental misunderstanding” of\n\nSupreme Court precedent and “a misapprehension of the purpose and effect” of the\n\npublic-nudity ordinance. Appellant’s Opening Br. at 9.\n\n We begin our analysis with an outline of the relevant equal-protection\n\nprinciples. Applying those principles, we then assess the merits of the Plaintiffs’\n\nequal-protection claim to determine whether the district court abused its discretion\n\nwhen it concluded that the likelihood-of-success factor tilts toward the Plaintiffs.\n\n 1. The Equal Protection Clause and Gender-Based Classifications\n “No State shall . . . deny to any person within its jurisdiction the equal\n\nprotection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause,\n\nas the U.S. Supreme Court has interpreted it, directs “that all persons similarly\n\nsituated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.\n\n432, 439 (1985). “At a minimum,” it requires that any statutory classification be\n\n“rationally related to a legitimate governmental purpose.” Clark v. Jeter, 486 U.S.\n\n456, 461 (1988). But more stringent judicial scrutiny attaches to classifications based\n\non certain “suspect” characteristics. See City of Cleburne, 473 U.S. at 440. These\n\n\n\n 9\n\n(often immutable) characteristics seldom provide a “sensible ground for differential\n\ntreatment.” Id.\n\n Gender, for instance, “frequently bears no relation to ability to perform or\n\ncontribute to society,” and statutes that differentiate between men and women “very\n\nlikely reflect outmoded notions” about their “relative capabilities.” Id. at 440–41\n\n(quoting Frontiero v. Richardson, 411 U.S. 677, 686 (1973)). As a result, gender-\n\nbased classifications “call for a heightened standard of review,” id. at 440, a standard\n\ndubbed “intermediate scrutiny” because it lies “[b]etween the[] extremes of rational\n\nbasis review and strict scrutiny.” Clark, 486 U.S. at 461. To survive intermediate\n\nscrutiny, a gender-based classification needs “an exceedingly persuasive\n\njustification.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994). The\n\nclassification must serve “important governmental objectives” through means\n\n“substantially related to” achieving those objectives. United States v. Virginia, 518\n\nU.S. 515, 533 (1996) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724\n\n(1982)); see also Craig v. Boren, 429 U.S. 190, 197–99 (1976) (defining, for the first\n\ntime, this level of means–ends scrutiny).\n\n The City acknowledges that a female-only topless ban is a gender-based\n\nclassification and that, to pass muster under the Equal Protection Clause, gender-\n\nbased classifications must satisfy intermediate scrutiny. But instead of drawing the\n\nlogical conclusion—that female-only topless bans warrant intermediate scrutiny—the\n\nCity interrupts the syllogism. It asserts that “[t]he fundamental requirement of any\n\ncognizable gender discrimination claim is invidious discrimination, not simply\n\n 10\n\nclassification on the basis of gender.” Appellant’s Opening Br. at 10 (bolding\n\nremoved).\n\n Some of the Court’s early equal-protection cases, such as 1979’s Parham v.\n\nHughes, did treat invidiousness as a “threshold” inquiry. 441 U.S. 347, 351 (1979).\n\nYet Parham, if never overruled, is outdated in light of the Court’s more modern\n\nequal-protection jurisprudence.4 Since then, the Court has “consistently” recognized\n\nthat statutes supposedly based on “reasonable considerations” may in fact reflect\n\n“archaic and overbroad generalizations about gender” or “outdated misconceptions\n\nconcerning the role of females in the home rather than in the marketplace and world\n\nof ideas.” J.E.B., 511 U.S. at 135 (quoting Schlesinger v. Ballard, 419 U.S. 498, 506–\n\n07 (1975), and Craig, 429 U.S. at 198–99). Today, heightened scrutiny “attends ‘all\n\ngender-based classifications.’” Morales-Santana, 137 S. Ct. at 1689 (quoting J.E.B.,\n\n511 U.S. at 136).\n\n\n\n\n 4\n Parham is a vestige of a period, not so long ago, when the Court didn’t\nconsider gender a suspect classification, a view that allowed the Court to ratify\nwomen’s near-universal exclusion from jury service. As late as 1961, the Court wrote\nthat because women were “the center of home and family life,” states could\n“relieve[]” them “from the civic duty of jury service” without offending the\nFourteenth Amendment. Hoyt v. Florida, 368 U.S. 57, 62, 65 (1961), overruled by\nTaylor v. Louisiana, 419 U.S. 522, 531, 532–34 (1975) (dodging Hoyt’s Fourteenth\nAmendment holding by relying on the Sixth Amendment, a move that the Court\neventually—in 1991—acknowledged as overruling Hoyt), as recognized in Payne v.\nTennessee, 501 U.S. 808, 828 n.1 (1991); see also Sessions v. Morales-Santana, 137\nS. Ct. 1678, 1689 (2017) (relegating Hoyt to “an era when the lawbooks of our\nNation were rife with overbroad generalizations about the way men and women are”).\n\n 11\n\n Invidiousness still matters, but only in challenges to facially gender-neutral\n\nstatutes that disproportionately and adversely impact one gender. See Personnel\n\nAdm’r v. Feeney, 442 U.S. 256, 259, 273–74 (1979) (challenging Massachusetts’s\n\nhiring preference for veterans, which worked “overwhelmingly to the advantage of\n\nmales”). Here, however, the City has enacted, and the Plaintiffs have challenged, a\n\npublic-nudity ordinance that prescribes one rule for women, requiring them to cover\n\ntheir breasts below the areola, and a different rule for men, allowing them to go\n\ntopless as they please. Fort Collins, Colo., Mun. Code § 17-142(b). The ordinance\n\ncreates a gender classification on its face, taking invidiousness out of the equation.\n\nThe success of the Plaintiffs’ equal-protection claim depends only on whether the\n\nordinance survives intermediate scrutiny.\n\n We turn to that question next, as we address the City’s attack on the merits of\n\nthe Plaintiffs’ equal-protection claim and defense of its public-nudity ordinance.\n\n 2. The Merits of the Plaintiffs’ Equal-Protection Claim\n\n The district court characterized as “little more than speculation” the City’s\n\nclaim that banning only female toplessness furthered important governmental\n\nobjectives. Free the Nipple, 237 F. Supp. 3d at 1131. Instead, the court found:\n\n The ordinance discriminates against women based on the generalized\n notion that, regardless of a woman’s intent, the exposure of her breasts in\n public (or even in her private home if viewable by the public) is\n necessarily a sexualized act. Thus, it perpetuates a stereotype engrained\n in our society that female breasts are primarily objects of sexual desire\n whereas male breasts are not.\n\n\n\n\n 12\n\nId. at 1132. As a result, the court concluded, the Plaintiffs demonstrated “a strong\n\nlikelihood that they will succeed at the permanent injunction trial in establishing that\n\n[the City’s public-nudity ordinance] violates the Equal Protection Clause.” Id. at\n\n1133.\n\n The City challenges this conclusion on appeal. It argues that, “in light of the\n\ndifferences between male and female breasts,” prohibiting only female toplessness is\n\nsubstantially related to an important governmental objective, as a sizeable majority of\n\nother courts have found. Appellant’s Opening Br. at 19. We address the City’s\n\nargument in two parts. First, we discuss the focus of the City’s defense—the physical\n\ndifferences between male and female breasts—and explain how such differences\n\naffect the constitutional analysis. Second, we determine whether the City’s female-\n\nonly toplessness ban survives constitutional scrutiny.\n\n a. Physical Differences\n In defending the constitutionality of its public-nudity ordinance, the City\n\nemphasizes the physical, social, and sexual characteristics particular to the female\n\nbreast. Citing a Wikipedia article (which is titled “Breast” but discusses only the\n\nfemale version) the City argues that women’s breasts “have social and sexual\n\ncharacteristics,” although their “primary function” is breastfeeding infants.\n\nAppellant’s Opening Br. at 12; see Breast, Wikipedia: The Free Encyclopedia,\n\nhttps://en.wikipedia.org/wiki/Breast (last visited Apr. 18, 2018). The article, as\n\nquoted by the City, describes female breasts (“and especially the nipples”) as “among\n\nthe various human erogenous zones” and claims that “it is common to press or\n\n 13\n\nmassage them with hands or orally before or during sexual activity.” Appellant’s\n\nOpening Br. at 12. Breasts, the City claims, “can figure prominently in a woman’s\n\nperception of her body image and sexual attractiveness” and “have a hallowed sexual\n\nstatus” in Western culture, “arguably more fetishized than either sex’s genitalia.” Id.\n\nBut “the sexualization of women’s breasts,” according to the City, “is not solely a\n\nproduct of societal norms, but of biology.” Id. at 13. Research suggests that women’s\n\nbreasts have greater “tactile sensitivity” than men’s. Id. at 13–14 (citing J.E.\n\nRobinson & R.V. Short, Changes in Breast Sensitivity at Puberty, During the\n\nMenstrual Cycle, and at Parturition, British Medical Journal 1, 1188–91 (1977)).5\n\n Though we’re wary of Wikipedia’s user-generated content, we agree with the\n\ndistrict court that “[o]f course” inherent physical differences exist between women’s\n\nand men’s breasts—most obviously, the unique potential to nourish children. Free\n\nthe Nipple, 237 F. Supp. 3d at 1132; see also Crispin v. Christian Audigier, Inc., 717\n\nF. Supp. 2d 965, 976 n.19 (C.D. Cal. 2010) (discussing the dangers of relying on\n\nWikipedia); R. Jason Richards, Courting Wikipedia, 44 Trial 62 (Apr. 2008) (“Since\n\nwhen did a Web site that any Internet surfer can edit become an authoritative source\n\nby which . . . lawyers could craft legal arguments[] and judges could issue\n\nprecedents?”). But that doesn’t resolve the constitutional question.\n\n\n\n 5\n The City also points to printouts, appended to its preliminary-hearing brief,\nsummarizing data from Alfred Kinsey’s 1948 and 1953 studies showing that 98% of\ncouples engage in “manual stimulation of [the] female breast” and 93% in “oral\nstimulation of [the] female breast” during foreplay. Appellant’s App. vol. 3 at 111.\n\n 14\n\n “Physical differences between men and women,” the Court has recognized,\n\n“are enduring.” Virginia, 518 U.S. at 533. And in some cases, the Court has found,\n\nsuch differences justify differential treatment. See, e.g., Nguyen v. INS, 533 U.S. 53,\n\n58–59, 68 (2001) (upholding a paternal-acknowledgment requirement in a citizenship\n\nstatute that treated unwed mothers differently than unwed fathers, in part because the\n\nstatute addressed “an undeniable difference” between women and men: “at the\n\nmoment of birth . . . the mother’s knowledge of the child and the fact of parenthood\n\nhave been established in a way not guaranteed in the case of the unwed father”). But\n\nnot always.\n\n Any law premised on “generalizations about ‘the way women are’”—or the\n\nway men are—will fail constitutional scrutiny because it serves no important\n\ngovernmental objective. Virginia, 518 U.S. at 550; see also Morales-Santana, 137\n\nS. Ct. at 1692 (rejecting, as one such generalization, “the obsolescing view that\n\n‘unwed fathers [are] invariably less qualified and entitled than mothers’ to take\n\nresponsibility for nonmarital children”). Generalizations, the Court has explained,\n\n“have a constraining impact, descriptive though they may be of the way many people\n\nstill order their lives.” Morales-Santana, 137 S. Ct. at 1692–93. They “may ‘creat[e]\n\na self-fulfilling cycle of discrimination that force[s] women to continue to assume the\n\nrole of primary family caregiver.’” Id. at 1693 (alteration in original) (quoting Nev.\n\nDep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003)).\n\n So, as we inquire into a gender-based classification’s objectives, we must\n\nbeware of stereotypes and their potential to perpetuate inequality. “Even if\n\n 15\n\nstereotypes frozen into legislation have ‘statistical support,’” we must “reject\n\nmeasures that classify unnecessarily and overbroadly by gender when more accurate\n\nand impartial lines can be drawn.” Morales-Santana, 137 S. Ct. at 1693 n.13 (citing\n\nJ.E.B., 511 U.S. at 139 n.11); see also Cary Franklin, The Anti-Stereotyping Principle\n\nin Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 138 n.296 (2010)\n\n(“The anti-stereotyping principle pervades both stages of [intermediate scrutiny],\n\nshaping what constitutes an important interest and what means qualify as sufficiently\n\nnarrowly tailored to serve this interest.”).\n\n With those principles in mind, we now apply the intermediate-scrutiny\n\ndoctrine to the City’s female-only toplessness ban.\n\n b. Intermediate Scrutiny\n To determine whether the City’s public-nudity ordinance survives intermediate\n\nscrutiny, we first identify the City’s proffered reasons for enacting a gender-based\n\nclassification. Then, we ask whether the City’s reasons qualify as important\n\ngovernmental objectives and, if so, whether the gender-based means employed\n\nsubstantially serve those objectives. See Morales-Santana, 137 S. Ct. at 1690 (citing\n\nVirginia, 518 U.S. at 533).\n\n The City argues that the inherently sexual nature of the female breast, as\n\nopposed to the male breast, raises “myriad concerns” with “permitting adult females\n\nto go topless in public without restriction.” Appellant’s Opening Br. at 18. The City\n\nrefers us to the preliminary-injunction hearing, where three city officials—the deputy\n\ncity manager, the assistant chief of police, and the city aquatics supervisor—\n\n 16\n\ndescribed some of these concerns. The officials testified that female toplessness\n\ncould disrupt public order, lead to distracted driving, and endanger children. Citing\n\nthese concerns, the City claims that prohibiting only female toplessness serves to\n\nprotect children from public nudity, to maintain public order, and to promote traffic\n\nsafety.6 We address each rationale in turn.\n\n i. Protecting Children from Public Nudity7\n The capacity to breastfeed is the first attribute that, the City claims, sets the\n\nfemale breast apart. Yet the City’s public-nudity ordinance expressly exempts\n\nbreastfeeding women from the female-toplessness ban, so even children who weren’t\n\nexposed to their mothers’ breasts as breastfeeding infants may still see a naked\n\nfemale breast if they pass a woman breastfeeding in public—her right under state\n\nlaw. Fort Collins, Colo., Mun. Code § 17-142(d); see also Colo. Rev. Stat.\n\n§ 25-6-302 (2017) (“A mother may breast-feed in any place she has a right to be.”).\n\nIn that context, few would consider the sight of the woman’s breast dangerous.\n\n\n 6\n In its one-sentence summary of “the governmental issues at stake,” the City\nmentions two other interests: “advancing the quiet enjoyment of private property”\nand “the impact on businesses.” Appellant’s Opening Br. at 19. Yet the City doesn’t\nexplain how the public-nudity ordinance affects these interests, so we don’t consider\nthem any further.\n 7\n Before the district court, the City asserted the “protection of children” as\njustification for the female-only toplessness ban. See Appellant’s App. vol. 3 at 142,\n251:7–8; accord Free the Nipple, 237 F. Supp. 3d at 1130. On appeal, the City\ncharacterizes this objective a little differently, as “supporting parental rights to\ncontrol children’s exposure to public nudity.” Appellant’s Opening Br. at 19. But the\nCity doesn’t explain why it changed its mind or how (if at all) this nuance affects the\nanalysis, so we address only the objective better rooted in the record—the protection\nof children.\n\n 17\n\n The need to protect children arises, instead, from the City’s fear of topless\n\nwomen “parading in front of elementary schools, or swimming topless in the public\n\npool”—scenarios that it described to the court at the preliminary-injunction hearing.\n\nFree the Nipple, 237 F. Supp. 3d at 1131. But laws in the neighboring cities of\n\nBoulder and Denver, and in many other jurisdictions, allow female toplessness, and\n\nthe City presented no evidence of any harmful fallout. Id.; see also Boulder, Colo.\n\nMun. Code § 5-6-13 (2017); Denver, Colo. Mun. Code § 38-157.1 (2017). In fact, the\n\ndistrict court found, the City presented no evidence “that a law permitting public\n\nexposure of female breasts would have a significantly negative impact on the public.”\n\nFree the Nipple, 237 F. Supp. 3d at 1131. And absent contrary proof we, like the\n\ndistrict court, doubt that without a female-toplessness ban on the books, topless\n\nwomen would “regularly walk[] through downtown Fort Collins,” “parad[e]” past\n\nelementary schools, or swim in public pools. Id.\n\n We’re left, as the district court was, to suspect that the City’s professed\n\ninterest in protecting children derives not from any morphological differences\n\nbetween men’s and women’s breasts but from negative stereotypes depicting\n\nwomen’s breasts, but not men’s breasts, as sex objects. Id. (“[C]hildren do not need\n\nto be protected from the naked female breast itself but from the negative societal\n\nnorms, expectations, and stereotypes associated with it.”); cf. Tagami v. City of\n\nChicago, 875 F.3d 375, 382 (7th Cir. 2017) (Rovner, J., dissenting) (“The City’s\n\nclaim therefore boils down to a desire to perpetuate a stereotype that female breasts\n\n\n\n 18\n\nare primarily the objects of desire, and male breasts are not.”), cert. denied, 138\n\nS. Ct. 1577 (2018).\n\n In support of this view, the district court relied on the testimony of Dr. Tomi-\n\nAnn Roberts, a psychology professor and witness for the Plaintiffs. At the\n\npreliminary-injunction hearing, Dr. Roberts testified that our society’s sexualization\n\nof women’s breasts—rather than any unique physical characteristic—has engrained\n\nin us the stereotype that the primary purpose of women’s breasts is sex, not feeding\n\nbabies. The district court found Dr. Roberts credible and concluded, based on her\n\ntestimony, that “the naked female breast is seen as disorderly or dangerous because\n\nsociety, from Renaissance paintings to Victoria’s Secret commercials, has conflated\n\nfemale breasts with genitalia and stereotyped them as such.” Free the Nipple, 237 F.\n\nSupp. 3d at 1133.\n\n But laws grounded in stereotypes about the way women are serve no important\n\ngovernmental interest. Morales-Santana, 137 S. Ct. at 1692–93; Virginia, 518 U.S. at\n\n550. To the contrary, legislatively reinforced stereotypes tend to “create[] a self-\n\nfulfilling cycle of discrimination.” Hibbs, 538 U.S. at 736. Thus, the sex-object\n\nstereotype, according to Dr. Roberts, “serves the function of keeping women in their\n\nplace.” Appellant’s App. vol. 3 at 192:11. And as the district court found,\n\nperpetuating the sex-object stereotype “leads to negative cognitive, behavioral, and\n\nemotional outcomes for both women and men.” Free the Nipple, 237 F. Supp. 3d at\n\n1132. The court noted, for instance, that Dr. Roberts had testified about research\n\nlinking the sexual objectification of women to the view that, at younger and younger\n\n 19\n\nages, women are “appropriate targets of [sexual] assault.” Appellant’s App. vol. 3 at\n\n194:22–23.\n\n Accordingly, we reject the City’s claim that protecting children from public\n\nnudity qualifies as an important governmental objective substantially served by the\n\nCity’s female-only toplessness ban.\n\n ii. Maintaining Public Order and Promoting Traffic\n Safety\n In the abstract, we agree that public order and traffic safety are important\n\ngovernmental objectives. The absence of either could be fatal. But the justification\n\nfor a gender-based classification “must be genuine, not hypothesized,” and “it must\n\nnot rely on overbroad generalizations.” Virginia, 518 U.S. at 533. Here, we suspect\n\nthat enacting the public-nudity ordinance had less to do with the City’s professed\n\nobjectives and more to do with the sex-object stereotype that the district court\n\ndescribed. See Free the Nipple, 237 F. Supp. 3d at 1132.\n\n For one thing, in asserting that its female-only toplessness ban substantially\n\nfurthers important governmental objectives, the City mostly relies on cases holding\n\nthat nebulous concepts of public morality—not traffic safety or public order—\n\njustified similar bans. In one of those cases, for example, the Fourth Circuit tied a\n\npublic-nudity ordinance like the City’s to the “widely recognized” governmental\n\ninterest in “protecting the moral sensibilities of that substantial segment of society\n\nthat still does not want to be exposed willy-nilly to public displays of various\n\nportions of their fellow citizens’ anatomies that traditionally in this society have been\n\n\n 20\n\nregarded as erogenous zones,” portions that “still include (whether justifiably or not\n\nin the eyes of all) the female, but not the male, breast.” United States v. Biocic, 928\n\nF.2d 112, 115–16 (4th Cir. 1991); accord Tagami, 875 F.3d at 379; Ways v. City of\n\nLincoln, 331 F.3d 596, 600 (8th Cir. 2003).\n\n For another thing, although the City itself never asserted public morality as a\n\njustification for banning female toplessness, notions of morality may well underlie its\n\nassertions that conflicts will break out, and distracted drivers will crash, if it allows\n\nwomen to be topless in public. But such notions, like the fear that topless women will\n\nendanger children, originate from the sex-object stereotype of women’s breasts. And\n\nas we’ve explained, that stereotype doesn’t stand up to scrutiny. Cf. People v.\n\nSantorelli, 600 N.E.2d 232, 236 (N.Y. 1992) (Titone, J., concurring) (“One of the\n\nmost important purposes to be served by the Equal Protection Clause is to ensure that\n\n‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not\n\nbecome enshrined as part of the official policy of government.”); accord Obergefell\n\nv. Hodges, 135 S. Ct. 2584, 2603 (2015); see also Planned Parenthood of Se. Penn.\n\nv. Casey, 505 U.S. 833, 850 (1992) (“Our obligation is to define the liberty of all, not\n\nto mandate our own moral code.”).\n\n So what’s left? A female-only toplessness ban strikes us as an unnecessary and\n\noverbroad means to maintain public order and promote traffic safety “when more\n\naccurate and impartial lines can be drawn.” Morales-Santana, 137 S. Ct. at 1693\n\nn.13; see also Craig, 429 U.S. at 208–09 & n.22 (striking down a gender-based\n\ndifferential in the age at which men and women could legally buy 3.2% beer because\n\n 21\n\n“the principles embodied in the Equal Protection Clause are not to be rendered\n\ninapplicable by statistically measured but loose-fitting generalities concerning the\n\ndrinking tendencies of aggregate groups”). For instance, the City could abate\n\nsidewalk confrontations by increasing the penalties for engaging in offensive\n\nconduct. And to reduce distracted driving, the City could target billboards designed\n\nto draw drivers’ eyes from the road. But the City can’t impede women’s (and not\n\nmen’s) ability to go topless unless it establishes the tight means–ends fit that\n\nintermediate scrutiny demands.\n\n We recognize that ours is the minority viewpoint. Most other courts, including\n\na recent (split) Seventh Circuit panel, have rejected equal-protection challenges to\n\nfemale-only toplessness bans. E.g., Tagami, 875 F.3d at 380.8 But see id. at 383\n\n(Rovner, J., dissenting) (“Whether out of reverence or fear of female breasts,\n\nChicago’s ordinance calls attention to and sexualizes the female form and imposes a\n\nburden of public modesty on women alone, with ramifications that likely extend\n\nbeyond the public way.” (citing Free the Nipple, 237 F. Supp.3d at 1133));\n\nSantorelli, 600 N.E.2d at 237 (Titone, J., concurring) (“[T]he People have offered\n\nnothing to justify a law that discriminates against women by prohibiting them from\n\nremoving their tops and exposing their bare chests in public as men are routinely\n\n\n\n\n 8\n See also State v. Lilley, No. 2017-0116, 2019 WL 493721, at 5 & n.3 (N.H.\nFeb. 8, 2019) (concluding, in a divided opinion, that a public-nudity ordinance’s\nfemale-only toplessness ban comports with the New Hampshire Constitution’s Equal\nRights Amendment, and—in a footnote—with the federal Equal Protection Clause).\n 22\n\npermitted to do.”). None of these decisions binds us, though; nor does their sheer\n\nvolume sway our analysis.\n\n As we interpret the arc of the Court’s equal-protection jurisprudence, ours is\n\nthe constitutionally sound result. At least since Virginia, that arc bends toward\n\nrequiring more—not less—judicial scrutiny when asserted physical differences are\n\nraised to justify gender-based discrimination, while casting doubt on public morality\n\nas a constitutional reason for gender-based classifications. See, e.g., Morales-\n\nSantana, 137 S. Ct. at 1689 (clarifying that “all gender-based classifications” are\n\nsubject to “heightened scrutiny” (quoting J.E.B., 511 U.S. at 136)); Virginia, 518\n\nU.S. at 533 (“‘Inherent differences’ between men and women, we have come to\n\nappreciate, remain cause for celebration, but not for denigration of the members of\n\neither sex or for artificial constraints on an individual’s opportunity.”); Franklin,\n\nsupra, at 145–46 (“[T]he Court’s opinion [in Virginia] suggests that equal protection\n\nlaw should be particularly alert to the possibility of sex stereotyping in contexts\n\nwhere ‘real’ differences are involved, because these are the contexts in which sex\n\nclassifications have most often been used to perpetuate sex-based inequality.”).\n\n For these reasons, we believe that the district court correctly analyzed the\n\nPlaintiffs’ equal-protection claim. The court didn’t abuse its discretion in concluding\n\nthat because the Plaintiffs made a strong showing of their likelihood of success on the\n\nmerits, the first preliminary-injunction factor weighed in their favor.\n\n\n\n\n 23\n\n B. The Second Factor: Irreparable Injury\n\n The second preliminary-injunction factor asks whether irreparable injury will\n\nbefall the movants without an injunction. Awad, 670 F.3d at 1131. Most courts\n\nconsider the infringement of a constitutional right enough and require no further\n\nshowing of irreparable injury. Id.; accord Wright & Miller, supra, § 2948.1. The\n\ndistrict court applied that principle here, concluding that the City’s public-nudity\n\nordinance inflicts irreparable harm by violating the Plaintiffs’ right to equal\n\nprotection under the law. See Free the Nipple, 237 F. Supp. 3d at 1134.\n\n On appeal, the City acknowledges that well-settled law supports the\n\nconstitutional-violation-as-irreparable-injury principle. See, e.g., Elrod v. Burns, 427\n\nU.S. 347, 373–74 (1976); Awad, 670 F.3d at 1131; accord Wright et al., supra,\n\n§ 2948.1. And the City seems to concede that in the context of constitutional claims,\n\nthe principle collapses the first and second preliminary-injunction factors, equating\n\nlikelihood of success on the merits with a demonstration of irreparable injury. The\n\nCity nevertheless contests its application here on the ground that neither the district\n\ncourt nor the Plaintiffs cited a decision analyzing the specific injury asserted here: an\n\nequal-protection violation from a prohibition on public nudity.\n\n We’re not persuaded. What makes an injury “irreparable” is the inadequacy of,\n\nand the difficulty of calculating, a monetary remedy after a full trial. Awad, 670 F.3d\n\nat 1131. Any deprivation of any constitutional right fits that bill. See Adams ex rel.\n\nAdams v. Baker, 919 F. Supp. 1496, 1504–05 (D. Kan. 1996) (concluding that\n\nexcluding the plaintiff from the wrestling team because of her gender deprived her of\n\n 24\n\nher right to equal protection and that this deprivation “itself” constituted irreparable\n\nharm). Here, absent the preliminary injunction, the Plaintiffs, and all women in Fort\n\nCollins, risk criminal sanctions for making a choice—to appear topless in public—\n\nthat men may make scot-free. See Fort Collins, Colo. Mun. Code § 17-142. We’ve\n\nalready concluded that this gender disparity violates the Equal Protection Clause, so\n\nwe agree with the district court that the Plaintiffs need to show no further irreparable\n\nharm.\n\n Accordingly, we conclude that the district court didn’t abuse its discretion in\n\nconcluding that the Plaintiffs met the irreparable-injury requirement.\n\n C. The Third Factor: The Balance of Harms\n The third preliminary-injunction factor involves balancing the irreparable\n\nharms identified above against the harm that the preliminary injunction causes the\n\nCity. Fish, 840 F.3d at 754. Under the heightened disfavored-injunction standard, the\n\nPlaintiffs need to make a strong showing that the balance of harms tips in their favor.\n\nAwad, 670 F.3d at 1131. When a constitutional right hangs in the balance, though,\n\n“even a temporary loss” usually trumps any harm to the defendant. Wright et al.,\n\nsupra, § 2948.2 & n.10. In this case, according to the district court, the Plaintiffs met\n\ntheir third-factor burden because the deprivation of their right to equal protection\n\noutweighed the stakes for the City, which the court defined as the public’s interest in\n\nmorality. Free the Nipple, 237 F. Supp. 3d at 1134.\n\n The City contests that conclusion on appeal, asking “how any injury [the\n\nPlaintiffs] might sustain from being required to wait to bare their breasts in public\n\n 25\n\nuntil after this matter is concluded outweighs the City’s interest in maintaining a law\n\nthat was supported by the majority of its citizens and unanimously adopted by its\n\nCity Council.” Appellant’s Opening Br. at 35. But “being required to wait to bare\n\ntheir breasts in public” deprives the Plaintiffs of a constitutional right, while the City\n\nhas no interest in keeping an unconstitutional law on the books. Cf. Awad, 670 F.3d\n\nat 1131 (“[W]hen the law that voters wish to enact is likely unconstitutional, their\n\ninterests do not outweigh [a plaintiff’s interest] in having his constitutional rights\n\nprotected.”).\n\n For these reasons, we conclude that the district court didn’t abuse its discretion\n\nin determining that the balance of harms tips in the Plaintiffs’ favor, even under the\n\n“strong showing” standard applicable to disfavored injunctions.\n\n D. The Fourth Factor: The Public Interest\n\n The last preliminary-injunction factor requires that the injunction not be\n\nagainst the public interest. Awad, 670 F.3d at 1132. But as the district court wrote,\n\nit’s “always in the public interest to prevent the violation of a party’s constitutional\n\nrights.” Free the Nipple, 237 F. Supp. 3d at 1134 (quoting Connection Distrib. Co. v.\n\nReno, 154 F.3d 281, 288 (6th Cir. 1998)). On appeal, the City disputes that the\n\npublic-nudity ordinance is unconstitutional, but it cites no law casting doubt on the\n\npublic’s interest in preserving constitutional rights. See Awad, 670 F.3d at 1132; see\n\nalso Baker, 919 F. Supp. at 1505 (“The public interest would best be served by\n\nenjoining the defendants from infringing on the plaintiff’s right to equal\n\nprotection.”).\n\n 26\n\n As we explained above, the ordinance likely is unconstitutional, so we find the\n\nCity’s argument unconvincing. We conclude that the district court didn’t abuse its\n\ndiscretion in ruling that the public-interest factor weighs in the Plaintiffs’ favor.\n\n * *\n\n In sum, because we agree with the district court that each preliminary-\n\ninjunction factor favored the Plaintiffs, we also agree that the Plaintiffs should\n\nprevail on their preliminary-injunction motion. Thus, the district court didn’t abuse\n\nits discretion in issuing the injunction.\n\n CONCLUSION\n\n For these reasons, we affirm the district court’s order granting the Plaintiffs’\n\nmotion for a preliminary injunction, and we remand the case to the district court for\n\nfurther proceedings consistent with this opinion.\n\n\n\n\n 27\n\n17-1103—Free the Nipple, et al. v. City of Fort Collins", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368509/", "author_raw": "PHILLIPS, Circuit Judge."}, {"author": "HARTZ, Circuit Judge, dissenting", "type": "dissent", "text": "HARTZ, Circuit Judge, dissenting:\n The Supreme Court has been at the forefront of the march for gender equality. But\n\nit has never suggested that men and women are identical or that the law cannot recognize\n\ntheir inherent differences. On the contrary, in United States v. Virginia, 518 U.S. 515,\n\n533 (1996), it wrote: “‘Inherent differences’ between men and women, we have come to\n\nappreciate, remain cause for celebration . . . .” That pronouncement should, at the least,\n\ncause one to pause before expanding Supreme Court equal-protection doctrine that has\n\nbeen applied in wholly different contexts so that it encompasses laws founded on notions\n\nof the erotic, particularly when the distinctions in the law are directly based on inherent\n\nbiological, morphological differences between men and women. The case before us\n\nconcerns such a law.\n\n Let me begin by stating what I believe to be common ground. A fundamental\n\nprecept of equal-protection doctrine is that each person should be judged as an individual,\n\nnot as a member of a group. The law cannot treat the genders differently when there is\n\nno relevant difference between them. No reasonable person now believes that men and\n\nwomen differ in their talents and performances as, say, lawyers, so discrimination in\n\nlicensure cannot be tolerated. But even if there are relevant differences, those differences\n\ncannot justify differences in treatment unless there is a very good reason not to use\n\ngender-neutral criteria. In particular, gender discrimination cannot be justified simply by\n\nsignificant disparities between the bell curves showing the distribution of a specific talent\n\nor capacity or preference within each of the two groups. Even if women are, on average,\n\nsubstantially weaker than men, that is no reason to automatically disqualify a woman\n\nfrom a job that requires more strength than that possessed by the average woman. If an\n\nindividual woman can satisfy the strength requirements, it is irrelevant that most women\n\ncould not. Even if men are, on average, less interested in nurturing than women are, that\n\nis no reason to disqualify a man from a nursing position. After a divorce, custody of the\n\nchildren should depend on the specific qualities of the parents, not their genders. In these\n\ncases, the equal-protection problem is cured by requiring the use of gender-neutral\n\nlanguage—language that focuses on the pertinent criteria rather than stereotypes about a\n\nparticular gender. See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693 n.13 (2017)\n\n(“Even if stereotypes frozen into legislation have ‘statistical support,’ our decisions reject\n\nmeasures that classify unnecessarily and overbroadly by gender when more accurate and\n\nimpartial lines can be drawn.”).\n\n Thus, the Supreme Court has invalidated numerous laws treating males and\n\nfemales differently because the laws violated the Equal Protection Clause of the\n\nFourteenth Amendment (or the equivalent doctrine under the Due Process Clause of the\n\nFifth Amendment). The most recent, Morales-Santana, 137 S. Ct. 1678, concerned a\n\nstatute under which a child born abroad to unmarried parents, one of whom was a United\n\nStates citizen, could qualify for citizenship if the citizen parent was a mother with one\n\nyear of continuous physical presence in the United States, but required a citizen parent\n\nwho was the father to have five years of continuous presence. Nevada Department of\n\nHuman Resources v. Hibbs, 538 U.S. 721, 726–40 (2003), concerned gender\n\ndiscrimination in family leave. United States v. Virginia, 518 U.S. 515 (1996),\n\n\n 2\n\ninvalidated the exclusion of women from the Virginia Military Institute. J.E.B. v.\n\nAlabama ex rel. T.B., 511 U.S. 127 (1994), invalidated gender discrimination in using\n\nperemptory strikes in jury selection. Mississippi University for Women v. Hogan, 458\n\nU.S. 718 (1982), invalidated the exclusion of males from the nursing school at the State’s\n\nsole single-sex university. Kirchberg v. Feenstra, 450 U.S. 455 (1981), invalidated a\n\nstatute that granted only husbands the right to manage and dispose of jointly owned\n\nproperty without the spouse’s consent. Wengler v. Druggists Mutual Ins. Co., 446 U.S.\n\n142 (1980), invalidated a statute requiring a widower, but not a widow, to show he was\n\nincapacitated from earning a wage in order to recover benefits for a spouse’s death under\n\nworkers’ compensation laws. Orr v. Orr, 440 U.S. 268 (1979), invalidated a statute\n\nproviding that only men could be ordered to pay alimony following divorce. Craig v.\n\nBoren, 429 U.S. 190 (1976), invalidated a statute allowing women to purchase\n\n“nonintoxicating” beer at a younger age than could men. Stanton v. Stanton, 421 U.S. 7\n\n(1975), invalidated a statute providing that women reached legal majority at an earlier\n\nage than did men. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), invalidated a statute\n\nproviding that widows, but not widowers, could collect survivors’ benefits under the\n\nSocial Security Act. Frontiero v. Richardson, 411 U.S. 677 (1973), prohibited basing the\n\ndetermination of a spouse’s dependency on the gender of the member of the Armed\n\nForces claiming dependency benefits. And Reed v. Reed, 404 U.S. 71 (1971), invalidated\n\na statute that preferred men to women as administrators of estates.\n\n In the above decisions the Supreme Court applied (although only implicitly in the\n\nearlier cases) “heightened scrutiny,” which requires “an exceedingly persuasive\n\n\n 3\n\njustification” for the gender-based treatment. Morales-Santana, 137 S. Ct. at 1690\n\n(internal quotation marks omitted). Such scrutiny was appropriate because in each case\n\nthe underlying rationale for the legal distinction in the treatment of the two genders was\n\npart of the long history of “overbroad generalizations about the different talents,\n\ncapacities, or preferences of males and females.” Virginia, 518 U.S. at 533; see J.E.B.,\n\n511 U.S. at 135–36. The invalidated laws were predicated on stereotypes under which\n\nevery member of a gender was treated as having a talent, capacity, or preference that\n\nmost members of the gender have or were perceived as having.\n\n The Fort Collins indecency ordinance (the Ordinance) is not such a law. It is part\n\nof a long tradition of laws prohibiting public indecency—the public display of portions of\n\nthe anatomy that are perceived as particularly erotic or serve an excretory function.\n\nThese laws may be justified as reducing or preventing antisocial behavior caused by\n\nindecent exposure: offensive behavior ranging from assault to corruption of youth to\n\nsimply distraction from productive activity. The Ordinance does not discriminate against\n\nwomen on the basis of any overbroad generalization about their perceived “talents,\n\ncapacities, or preferences.” To the extent it distinguishes between the sexes, it is based\n\non inherent biological, morphological differences between them. Those differences are\n\nnot stereotypes. They are not statistical differences, they are not matters of degree. They\n\nare differences in anatomical structure that reflect the unique biological roles played by\n\nmales and females. (Plaintiffs’ “evidence” that the breasts of men and women are\n\nessentially identical cannot be taken seriously.) We are not dealing here with a\n\n“simplistic, outdated assumption that gender could be used as a proxy for other, more\n\n\n 4\n\ngermane bases of classification.” Mississippi University for Women, 458 U.S. at 726\n\n(internal quotation marks omitted).\n\n And, to go back to first principles in equal-protection jurisprudence, there is\n\nnothing inherently invidious to an adult of either gender in declaring that an inherent\n\nbiological, morphological feature of his or her body is erotic. That view would be\n\ninconsistent with the fundamental role of sexual attraction in our most revered social\n\ninstitution—marriage; to believe that a spouse is sexually attractive is not to demean the\n\nspouse. I do not think the Supreme Court has embraced the view that it is.\n\n In this light, it is apparent that the rationales supporting heightened scrutiny of\n\ngender discrimination have no purchase in the context of indecency laws based on\n\ninherent biological, morphological differences between the sexes. The proper standard of\n\nreview is the rational-basis standard generally applied to economic and social regulation.\n\nOne might argue that any departure from heightened scrutiny poses a danger that the\n\ntools for ending gender discrimination will be weakened in future cases. In my view,\n\nhowever, the danger is the contrary. As I shall explain below, attempts to treat the above-\n\ndescribed type of regulation under a heightened-scrutiny standard pose a significant risk\n\nthat the standard will be weakened, thereby endangering the power of equal-protection\n\ndoctrine to control gender discrimination.\n\n Plaintiffs’ arguments against the Ordinance are founded on the contention that it is\n\npredicated on a distorted view of the erotic nature of the female breast that has been\n\nimposed by an anti-female culture. Although one can debate about how much of our\n\nsociety’s view of the female breast is cultural and how much is biological (instinctual),\n\n\n 5\n\nthe argument is certainly one that can be presented to a court. But it is not an argument\n\nlike those in disputes that the Supreme Court has reviewed under heightened scrutiny—\n\nequal-protection cases that challenge the notion that males, or females, are not good at\n\ncertain tasks or worthy of a benefit because of their inherent talents, capacities, or\n\npreferences. And resolution of the argument will, at least for the time being and the\n\nforeseeable future, depend on unproved theories (by, say, neurologists, evolutionary\n\nbiologists, psychologists, and sociologists), rather than on everyday observations of what\n\npeople are doing.\n\n Further, even if notions of the erotic are purely culturally based, it is unclear why\n\nthat is relevant to the validity of indecency laws. The purpose of those laws is to reduce\n\nantisocial behavior. Such laws must deal with the real world. Legislation itself is\n\nrational even if the behavior it attempts to control is irrational (such as sexual assault\n\npurportedly caused by objectification of the female body). What would be the state of\n\nsociety if legislation could control only rational behavior? A regulation designed to\n\nreduce the antisocial effects of irrational thinking does not constitute an endorsement of\n\nthat irrational thinking. Are laws regulating pornography and obscenity invalid if the\n\nsocietal harms they are intended to prevent are caused by cultural influences rather than\n\npurely biological ones? The only assumption about men and women underlying the\n\nOrdinance is that because of the erotic potential of female breasts, their public exposure\n\nwill induce misconduct.\n\n The psychological theory underlying Plaintiffs’ concerns is objectification theory.\n\nAs I understand the theory, its concern is not with loving, respectful relationships in\n\n\n 6\n\nwhich the female breast has an erotic role. Rather, its concern is that our culture has\n\ncome to objectify the female body, divorcing it from the human being to which it\n\nbelongs, and valuing the woman primarily as just a body (or collection of body parts) to\n\nbe used or consumed by others. In other words, women are treated as sex objects. The\n\nmedia may not be the sole cause, but advertisements and entertainment thrust this culture\n\non the public. The harmful consequences are multiple and severe. The effect on men is\n\nthat they mistreat women, from engaging in sexual assault to belittling their talents. The\n\neffect on women is more insidious. Many internalize the objectification they experience,\n\ncausing them to obsess about their appearance and to suffer severe damage to their self-\n\nimage and mental health—with consequences to their educational attainment, jobs, etc.\n\nThis damage is not caused by the women themselves; they do not wish their bodies to be\n\nobjectified. Objectification is imposed on them by society. Plaintiffs oppose such\n\nobjectification and the sources (such as advertisements and entertainment media) that fuel\n\nit. They believe that permitting women to publicly bare their breasts will educate the\n\npublic that the female breast need not be treated as a sexual object and thereby help\n\nreduce objectification and the damage it causes. The Ordinance, in their view, promotes\n\nobjectification by assuming that the female breast is necessarily erotic and therefore\n\ncompelling it to be covered.\n\n Perhaps the theory is sound and Plaintiffs’ approach will improve the treatment of\n\nwomen. But others could believe that a different approach is preferable, even if they\n\nendorse objectification theory. Some might think that the purposes of the Ordinance are\n\nvery much in tune with Plaintiffs’ concerns. The purposes expressed in support of the\n\n\n 7\n\nOrdinance can be characterized as preventing just the sort of antisocial conduct that\n\npurportedly can arise from “objectifying” the female breast: misconduct by some people\n\ncaused by their treating the female breast (and the woman) as a sex object and exposure\n\nof children to breasts that are treated as sex objects. After all, it appears to be an essential\n\npremise of objectification theory that the woman whose body (breast) is objectified is not\n\nthe one who controls that objectification. It is other people who objectify her body.\n\nWhen Plaintiffs publicly bare their breasts, even in a nonsexual manner with the purpose\n\nof conveying that there is nothing necessarily “sexy” about them, they cannot determine\n\nhow others will view their breasts. Under objectification theory it is the response of\n\nothers to the female breast, not the woman’s personal intent, that drives objectification.\n\nSome, perhaps most, may react to Plaintiffs in a way that treats their breasts as sex\n\nobjects. Indeed, an article co-authored by Plaintiffs’ expert, Professor Tomi-Ann\n\nRoberts, cited research showing that sexual objectification is most likely in “public,\n\nmixed-gender, unstructured” spaces—just where Plaintiffs wish to appear topless.\n\nFredrickson & Roberts, Objectification Theory, 21 Psychology of Women Quarterly 173,\n\n197 (1997).1 How does it help children grow up well-adjusted to expose them to such\n\nexchanges in the public square? See Aplt. App. Vol. III at 203–05 (testimony by\n\nProfessor Roberts, agreeing that “a child having exposure to a sexualized female breast\n\n\n1\n The full text states: “[S]exual objectification is unlikely to affect any woman all the\ntime. The extent to which particular social contexts accentuate a woman’s awareness of\nactual or potential observers’ perspectives on her body will, in part, predict the degree\nand kind of negative repercussions that she may experience. Sociological research has\nshown that it is in certain spaces—namely public, mixed-gender, unstructured ones—that\nwomen’s bodies are most subject to evaluative commentary by others.”\n\n 8\n\nmight be harmful or negative to that child,” stating that “the massive exposure to\n\nsexualized female breasts that children are made aware of -- that is something that should\n\nbe controlled,” and agreeing that “when this information that children are being exposed\n\nto is sexualized, it’s bad; but when it’s nonsexualized, it’s either neutral or good.” ). And\n\neven if Plaintiffs’ public displays have the desired effect, others may take advantage of\n\nthe opportunity to publicly display their breasts in a manner that promotes objectification\n\nwithout crossing the line into lewdness prohibited by other statutes.\n\n I do not presume to resolve these issues. But I think it fair to say that they do not\n\nraise the sorts of questions that lend themselves to review under the heightened scrutiny\n\ndemanded by Plaintiffs. The “exceedingly persuasive justification” standard is a poor\n\ntool, probably an unworkable one, for assessing the propriety, the constitutionality, of\n\npublic-indecency laws. These laws are justified as promoting public order, quality-of-\n\nlife, and morality. In evaluating these laws, we therefore must ask whether those\n\npurposes are served. The parties, the district court, and the panel majority have all\n\nexamined whether the Ordinance can be justified on the ground that it prevents societal\n\nharms by maintaining public order, promoting traffic safety, and shielding children from\n\npsychological harm. These issues have not been relevant in Supreme Court gender-\n\ndiscrimination cases, where the focus of the Court has been on the individual being\n\ndiscriminated against and the question is whether that individual’s gender necessarily\n\nprecludes him or her from having the “talents, capacities, or preferences” required for the\n\nbenefit. Virginia, 518 U.S. at 533.\n\n\n\n\n 9\n\n Under heightened scrutiny, a distinction between the genders can be justified only\n\nby “exceedingly persuasive” evidence. Morales-Santana, 137 S. Ct. at 1690 (internal\n\nquotation marks omitted). So how could a government prove that an indecency law\n\naccomplishes its purpose? We can begin with laws prohibiting total nudity in public.\n\nPerhaps they are enacted solely for aesthetic reasons; but I suspect they are also justified\n\nas protecting public order, improving the quality of life, and preventing improper\n\ninfluences on the young. Yet it is hard to see how any such law could be upheld if\n\ncompelling empirical data is required. What does one use as a control group (a society\n\nwhere public nudity is common)—some small isolated community? Legislators, and the\n\npublic they respond to, must rely on intuitions—intuitions supported by millennia of\n\ntraditions in our society. One could say that these traditions are merely cultural. But,\n\ncontrary to some modern thought, that is not necessarily a stigma. One can recognize\n\nthat our culture has been disgraced by discrimination, particularly racial, religious, and\n\ngender discrimination, and still recognize the good that has been provided by other\n\ncomponents of that culture. In any event, my point is that this is not a matter that can be\n\nproved under the standards of heightened scrutiny.\n\n The difficulty of obtaining probative evidence does not significantly diminish\n\nwhen one considers where to draw the line regarding the minimal amount of clothing\n\nrequired. Should any exposure of the buttocks whatsoever be prohibited? What sort of\n\ncoverage of the genitalia is required? How much of the female breast can be exposed,\n\nand in what context? (For example, nursing in public, which is recognized by the\n\nOrdinance as an exception to the general prohibition, may have minimal erotic effect on\n\n\n 10\n\nothers because of the context, although the exception might be justified simply because of\n\nthe strong public interest in permitting nursing.) There are two particular difficulties.\n\nOne, again, is the difficulty of finding a control group. If the issue is whether any harm\n\nwould flow from eliminating any prohibition on women fully exposing their breasts, we\n\nwould need an example of where such public exposure is common. It is not enough to\n\nfind a place where no law prohibits such exposure if exposure is still rare.2 Any effect of\n\nrare events is likely to be undetectable in the data. Another difficulty is measuring long-\n\nterm effects. In particular, if there is psychological damage to children, that may not\n\nsurface for a long time.3 And when it does surface, the children may not live in the\n\ncommunity that serves as a control group. Cf. FCC v. Fox Television Stations, Inc., 556\n\nU.S. 502, 519 (2009) (“There are some propositions for which scant empirical evidence\n\ncan be marshaled, and the harmful effect of broadcast profanity on children is one of\n\nthem. One cannot demand a multiyear controlled study, in which some children are\n\n\n\n2\n The panel opinion suggests that the apparent infrequency of the most problematic types\nof public toplessness (downtown or at swimming pools or outside schools) in\ncommunities that do not prohibit the practice is a constitutional argument against the\nOrdinance. See Maj. Op. at 18. But even if the harm is limited by the infrequency of the\npractice, I do not see why the city cannot try to prevent even that harm, or why it must\nawait more significant harm before it can prohibit the practice. The usual criticism of\ngovernment is it makes no effort to prevent a problem until the problem is advanced.\n3\n It does not appear that Plaintiffs challenge the general proposition that exposing\nchildren to nudity or female toplessness can be psychologically damaging. See, e.g.,\nGinsberg v. State of New York, 390 U.S. 629, 641–43 (1968) (affirming against First\nAmendment challenge a statute that restricts sale of obscene material to minors that could\nnot be prohibited with respect to adults). As I understand them, their objection to\nexposure, however, would be only when the context of the nudity or toplessness\npromotes objectification.\n\n 11\n\nintentionally exposed to indecent broadcasts (and insulated from all other indecency), and\n\nothers are shielded from all indecency.”)\n\n The testimony of Plaintiffs’ expert, Professor Roberts, is relevant here. She\n\nacknowledged that “there isn’t any data on whether or not allowing female toplessness or\n\nnot allowing female toplessness impacts the process of self-objectification one way or the\n\nother.” Aplt. App. Vol. III at 212. The only study she referred to as supporting her views\n\nregarding public toplessness was an 18-year longitudinal study of 200 children in\n\nCalifornia of European-American descent. See Paul Okami, Ph.D., et al., Early\n\nChildhood Exposure to Parental Nudity and Scenes of Parental Sexuality (“Primal\n\nScenes”): An 18-Year Longitudinal Study of Outcome, Archives of Sexual Behavior, Vol.\n\n27, No. 4, 361, 367 (1998). The study indicated various psychological benefits, and no\n\nnegative effects, on children exposed to parental nudity in their early years (and reported\n\npositive results for males and mixed results for females from having watched their\n\nparents having sex). Professor Roberts said nothing about the study ever having been\n\nreplicated. But even on its own terms, it would show only the desirability of exposing\n\nchildren to nudity in the home—an environment where objectification can presumably be\n\nexcluded. (It is interesting that the professor did not argue that the study supports public\n\nnudity, as opposed to just toplessness. She volunteered in her testimony that “[g]enitals\n\nshould be covered,” Aplt. App. Vol. III at 218, without explaining how that is consistent\n\nwith the study.) As I understand the professor’s testimony, she thinks that it is harmful to\n\nwomen when the female breast is “objectified” as an object of sexual desire, but not when\n\nit is displayed but not objectified. She did not explain, however, how a parent taking a\n\n\n 12\n\nchild to a public place can be confident that the exposed breasts of a woman in that place\n\nwill not be so objectified, either by the woman herself or by the responses of onlookers.\n\nIt would not be unreasonable to think that the city ordinance actually protects children\n\nfrom witnessing the objectification of the female breast.\n\n To recap the salient reasons why the rationales for heightened scrutiny do not\n\napply here: (1) the breast of the mature female is anatomically different from the male\n\nbreast; (2) to say that the female breast has erotic potential is not invidious to women and\n\nis not a stereotype, certainly not an overbroad generalization about the talents, capacities,\n\nor preferences of women; (3) courts cannot determine with any degree of confidence\n\nwhether erotic potential is biological (instinctual) or cultural, and the issue is of\n\nquestionable relevance anyway; (4) a law restricting the public display of the mature\n\nfemale breast need not be predicated on the notion that the mature female breast is\n\nnothing more than a sex object; and (5) societal harm from public eroticism (including\n\nobjectification of the female body) often does not readily lend itself to objective proof.\n\nThis is not to say that the Ordinance is a wise law, or even a rational one, a matter on\n\nwhich future research may be enlightening. I express no view on that. I do believe,\n\nhowever, that in this context, courts must exercise some humility. We should not run\n\nwith the latest psychological or sociological study and override legislative judgments\n\nwithout the most careful consideration.\n\n I recognize that a number of courts, almost all that have considered the issue, have\n\nupheld against equal-protection challenges various indecency laws prohibiting women\n\nfrom exposing their breasts on the ground that they survive heightened scrutiny. See\n\n\n 13\n\nKimberly J. Winbush, J.D., Regulation of exposure of female, but not male, breasts, 67\n\nA.L.R. 5th 431 (originally published in 1999) (collecting cases). But I am reluctant to\n\nfollow that lead. Because of the difficulty of obtaining proof of the effects of indecency,\n\nI question whether the evidence supporting the laws provides “an exceedingly persuasive\n\njustification” for them. It would be unfortunate if by upholding indecency laws, the\n\ncourts weaken the scrutiny applied to laws that truly do discriminate against women on\n\nthe basis of their perceived “talents, capacities, or preferences.”\n\n Finally, because the Fort Collins ordinance should be subjected only to rational-\n\nbasis review, I would reverse the grant of the preliminary injunction and remand for\n\nfurther proceedings. I therefore respectfully dissent.\n\n\n\n\n 14", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368509/", "author_raw": "HARTZ, Circuit Judge, dissenting"}]}	BRISCOE	HARTZ	PHILLIPS	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4591256/	Published	1	1	0	0	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,400		Kile v. United States	2019-02-15	18-7004	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before McHUGH, MURPHY, and CARSON, Circuit Judges.", "parties": "", "opinions": [{"author": "CARSON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n UNITED STATES COURT OF APPEALS Tenth Circuit\n\n FOR THE TENTH CIRCUIT February 15, 2019\n _________________________________\n Elisabeth A. Shumaker\n Clerk of Court\n ANGELA KILE, et al.,\n\n Plaintiffs,\n\n v. No. 18-7004\n (D.C. No. 6:00-CV-00404-KEW)\n UNITED STATES OF AMERICA, (E.D. Okla.)\n\n Defendant - Appellee,\n\n and\n\n COMPHEALTH, INC., a Delaware\n corporation formerly known as C.H.S., Inc,\n et al.,\n\n Defendants.\n\n ------------------------------\n\n BARBARA LEMMINGS, et al.,\n\n Movants - Appellants.\n _________________________________\n\n ORDER\n _________________________________\n\nBefore McHUGH, MURPHY, and CARSON, Circuit Judges.\n _________________________________\n\n On February 13, 2019, the United States filed a letter notifying the court of a\n\ntypographical error contained in the Opinion filed on February 11, 2019. Via this order,\n\nwe now direct the Clerk to correct the error and to reissue the decision nunc pro tunc to\n\fthe original filing date. A copy of the corrected Opinion is attached to this order and shall\n\nbe filed forthwith.\n\n\n Entered for the Court\n\n\n\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n\n 2\n\f FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 11, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n ANGELA KILE; JODY LEMMINGS,\n\n Plaintiffs,\n\n v. No. 18-7004\n\n UNITED STATES OF AMERICA,\n\n Defendant - Appellee,\n\n and\n\n COMPHEALTH, INC., a Delaware\n corporation formerly known as C.H.S., Inc;\n COMPHEALTH MEDICAL STAFFING,\n INC., a Delaware corporation; ROMULO\n G. PEREZ,\n\n Defendants.\n\n ------------------------------\n\n BARBARA LEMMINGS; ORAN\n HURLEY, JR.,\n\n Movants - Appellants.\n _________________________________\n\n Appeal from the United States District Court\n for the Eastern District of Oklahoma\n (D.C. No. 6:00-CV-00404-KEW)\n _________________________________\n\nGeorge W. Braly, Braly, Braly, Speed & Morris, PLLC, Ada, Oklahoma, appearing for\nAppellants Barbara Lemmings and Oran Hurley, Jr.\n\fElliott M. Davis, Trial Attorney, United States Department of Justice, Washington D.C.\n(Susan Stidham Brandon, Assistant United States Attorney, United States Attorney’s\nOffice, Muskogee, OK, with him on the brief), appearing for Appellee United States of\nAmerica.\n _________________________________\n\nBefore McHUGH, MURPHY, and CARSON, Circuit Judges.\n _________________________________\n\nCARSON, Circuit Judge.\n _________________________________\n\n Federal Rule of Civil Procedure 17 controls when a district court must appoint\n\na guardian ad litem for a minor settling claims with a defendant. The plain language\n\nof the Rule is clear: a district court is not required to appoint a guardian ad litem\n\nevery time it considers the fairness of a settlement. Rather, a district court need only\n\nappoint a guardian ad litem where the minor is not otherwise represented by a general\n\nguardian or other appropriate person. We thus reject Appellants Barbara Lemmings\n\nand Oran Hurley, Jr.’s contention that the rule requires the formal appointment of a\n\nguardian ad litem whenever a parent and child settle their claims with a defendant.\n\nWe further reject the contention that an inherent conflict of interest always exists\n\nwhere a minor is represented by a parent who is a party to the same lawsuit as the\n\nminor.\n\n I.\n\n Plaintiff Millard Lance Lemmings (“Lance”) was born at a government-\n\noperated hospital in Ada, Oklahoma. During his birth, Lance suffered a brain injury.\n\nHe cannot speak, walk, or care for himself. Lance and his parents, suing as “parents\n\nand next friends,” filed this civil action against Defendants on August 8, 2000.\n\n 2\n\fPlaintiffs alleged that Defendants committed medical malpractice during Lance’s\n\nbirth and sued under the Federal Tort Claims Act.\n\n The parties settled the case on September 28, 2001. Lance’s parents were\n\nsimultaneously engaged in a state court proceeding regarding guardianship of Lance.\n\nOn the morning of October 25, 2001, Lance’s parents filed an application for an\n\norder approving the agreed settlement, attorneys’ fees, and litigation costs in the state\n\ncourt action. The state district court appointed Lance’s parents as the guardians of\n\nLance’s estate. Following that court order, Lance’s parents withdrew their state court\n\napplication for an order approving the settlement. Later that day, Lance’s parents\n\nappeared before the federal district court for a fairness hearing regarding the\n\nsettlement. Lance’s parents represented him at the fairness hearing. The district\n\ncourt did not appoint a guardian ad litem.\n\n At the fairness hearing, Plaintiffs’ counsel recited the terms of the settlement\n\ninto the record in detail. The parties settled the matter for $5,000,000.00. Of that\n\namount, the United States paid $1,350,000.00 into a reversionary medical trust\n\n(“Irrevocable Governmental Trust”) and the remaining two Defendants paid a\n\ncombined $1,000,000.00 into a separate trust (“Non-Governmental Trust”). The\n\nUnited States funded the Irrevocable Governmental Trust with annuities. By its\n\nterms, the Irrevocable Governmental Trust is a “secondary payor” after Lance\n\nexhausts coverage from Medicare, Medicaid, and any tribal or insurance benefits. In\n\nthe event of Lance’s death, the Irrevocable Governmental Trust benefits revert to the\n\nUnited States. The United States paid an additional $2,650,000.00 to Plaintiffs\n\n 3\n\foutside of the Irrevocable Governmental Trust. Of that amount, Plaintiffs’ attorneys\n\nreceived $1,425,000.00.\n\n Lance’s parents, Angela Kile and Jody Lemmings, testified at the fairness\n\nhearing. Both Kile and Lemmings acknowledged that they understood the terms of\n\nthe settlement. Additionally, they stated that they had cared for Lance since his birth\n\nand confirmed their plan to care for him in the future. The court sealed the fairness\n\nhearing transcript.\n\n On October 25, 2001, the district court approved the settlement. At the same\n\ntime, the parties executed a Stipulation for Compromise Settlement and Release of\n\nFederal Tort Claims Act Claims and Judgment Dismissing Action by Reason of\n\nSettlement. The next day, the parties filed a Release of Claims. On December 5,\n\n2001, the case concluded with the filing of a Stipulation of Dismissal with Prejudice.\n\nThe district court did not retain jurisdiction to further affect the settlement or the\n\ntrusts the settlement documents created.\n\n Over fifteen years later, on June 16, 2017, Appellants filed a motion seeking to\n\nintervene, in which they contended: (1) the parties presented materially inaccurate\n\ninformation to the district court in 2001 in order to obtain the district court’s\n\napproval; (2) the district court did not have jurisdiction to approve the settlement\n\nbecause it did not appoint a guardian ad litem to represent Lance; and (3) a conflict\n\nof interest existed between Lance and his parents which required the appointment of\n\na guardian ad litem. Belatedly, Appellants further sought access to the 2001 sealed\n\nfairness hearing transcript. In the motion to intervene, Appellants asserted that\n\n 4\n\fLance’s parents spent a large portion of the proceeds and abandoned him in 2011,\n\nleaving him in the care of his paternal grandmother, Appellant Barbara Lemmings.\n\nThe state district court appointed her Lance’s guardian in January 2017. After Ms.\n\nLemmings suffered a health issue, the state court appointed Appellant Oran Hurley,\n\nJr. as co-guardian. Appellants sought to reopen the district court action, vacate the\n\ndismissal, intervene, and rewrite the terms of the Irrevocable Governmental Trust in\n\norder to access the proceeds contained in that trust. The United States objected.\n\n In December 2017, the district court issued an Order denying Appellants’\n\nrequest. It held that no basis in law existed to invade the finality of the stipulation of\n\ndismissal. The district court therefore concluded it lacked jurisdiction to consider\n\nAppellants’ requested relief. As to Appellants’ requested access to the sealed\n\ntranscript of the fairness hearing, the district court denied the request. The district\n\ncourt stated that because it lacked the jurisdiction to grant the relief requested,\n\nintervention would be futile. And, because the district court did not allow Appellants\n\nto intervene, it concluded they remained non-parties who were not entitled to access\n\nto the sealed transcript of the fairness hearing. Appellants appealed. Our jurisdiction\n\narises under 28 U.S.C. § 1291. We affirm.\n\n\n\n II.\n\n Appellants assert the district court erred in concluding that, without the\n\nappointment of a guardian ad litem, it had personal jurisdiction over Lance to\n\napprove and enter the settlement agreement on October 25, 2001. Because of that\n\n 5\n\falleged error, Appellants next contend the district court erred in determining that it\n\nlacked jurisdiction under Federal Rule of Civil Procedure 60(b) to consider\n\nAppellants’ requested relief. Finally, Appellants argue the district court’s refusal to\n\nallow Appellants access to the sealed transcript of the fairness hearing denied Lance\n\nhis fundamental constitutional right to due process. We address each issue in turn.\n\n A.\n\n Federal Rule of Civil Procedure (“Rule”) 60(b)(4) provides that a court may\n\nrelieve a party from final judgment if the judgment is void. A judgment is void for\n\nRule 60(b)(4) purposes if the rendering court lacked the power to enter it. Gschwind\n\nv. Cessna Aircraft Co., 232 F.3d 1342, 1346 (10th Cir. 2000). This occurs “only if\n\nthe court which rendered it lacked jurisdiction of the subject matter, or of the parties,\n\nor acted in a manner inconsistent with due process of law.” United States v. Buck,\n\n281 F.3d 1336, 1344 (10th Cir. 2002). Unlike other Rule 60(b) motions, relief from a\n\nvoid judgment is mandatory. Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203\n\n(10th Cir. 1986). “We review de novo the district court’s ruling on a Rule 60(b)(4)\n\nmotion.” Buck, 281 F.3d at 1344.\n\n Appellants contend the 2001 judgment in this civil action is void because the\n\ndistrict court lacked personal jurisdiction over Lance. Specifically, Appellants argue\n\nthat a guardian ad litem for Lance was a necessary and indispensable party. Federal\n\nRule of Civil Procedure 17(c) controls the procedural question of the appointment of\n\na guardian ad litem. In 2001, Rule 17(c) provided:\n\n\n\n 6\n\f Whenever an infant or incompetent person has a representative, such as a\n general guardian, committee, conservator, or other like fiduciary, the\n representative may sue or defend on behalf of the infant or incompetent\n person. An infant or incompetent person who does not have a duly\n appointed representative may sue by a next friend or by a guardian ad litem.\n The court shall appoint a guardian ad litem for an infant or incompetent\n person not otherwise represented in an action or shall make such other\n order as it deems proper for the protection of the infant or incompetent\n person.1\n Appellants urge us to adopt a mandatory rule that whenever a child and a\n\nparent settle their claims against a defendant, a district court must appoint a guardian\n\nad litem to represent the child’s interests or it must make findings that no such\n\nappointment is necessary. We reject such a rule.\n\n The plain language of Rule 17(c) does not require the district court to appoint\n\na guardian ad litem in all cases. Instead, the Rule provides that the court shall\n\nappoint a guardian ad litem for a person not otherwise represented in an action.2\n\n\n\n\n 1\n We note that our analysis is the same under the current version of Rule 17(c),\nthe language of which the Committee amended in 2007 as part of the general\nrestyling of the Federal Rules of Civil Procedure.\n 2\n Appellants point us to Roberts v. Ohio Casualty Insurance Company, 256\nF.2d 35 (5th Cir. 1958). The Roberts court held that the “orderly administration of\njustice and the procedural protection of minors requires the trial judge to give due\nconsideration to the propriety of an infant’s representation by a guardian ad litem\nbefore he may dispense with the necessity of appointing the guardian.” Id. at 39.\nThat case is factually distinguishable. In Roberts, the district court granted judgment\nagainst minor children who were not represented by guardians or next friends. Id. at\n37. Because the minor children were not represented, the Roberts court considered\nthe final sentence of Rule 17(c), which provided that the court shall appoint a\nguardian ad litem for an infant not otherwise represented. In this case, Lance was\nrepresented at the settlement by his parents, who expressly served as his general\nguardians and next friends.\n 7\n\fRule 17(c) further provides that an infant or incompetent person may sue by “a next\n\nfriend.” Thus, Appellants’ position is foreclosed by the plain language of Rule 17(c).\n\n The established caselaw precludes the relief sought by Appellants as well.\n\nCourts addressing the issue have held that “unless a conflict of interest exists\n\nbetween the representative and minor, a district court need not even consider the\n\nquestion whether a guardian ad litem should be appointed.” Burke v. Smith, 252\n\nF.3d 1260, 1264 (11th Cir. 2001) (citing Croce v. Bromley Corp., 623 F.2d 1084,\n\n1093 (5th Cir. 1980)). “[W]hen a minor is represented by a parent who is a party to\n\nthe lawsuit and who has the same interests as the child there is no inherent conflict of\n\ninterest.” Id. Indeed, absent an apparent conflict of interest, the appointment of a\n\nguardian ad litem is not necessary where a parent is a party to the lawsuit and presses\n\nthe child’s claims before the court. Croce, 623 F.2d at 1093.\n\n Appellants further urge us to consider that Lance’s parents were unmarried,\n\nallegedly did not have a stable family relationship, and never received state court\n\napproval of the settlement agreement. Marital status and wealth do not impact our\n\nanalysis. Nor does it matter that the parties abandoned their motion for approval in\n\nstate court once the state court officially named Lance’s parents his guardians. At\n\nthat time, the evidence before the district court showed that Lance’s parents had\n\ncared for Lance, that they would continue to care for him in the future, and that the\n\nstate court had appointed them as his general guardians.\n\n We perceive no inherent conflict of interest between Lance and his parents as\n\nhis representatives. Moreover, for purposes of reopening this civil action that had\n\n 8\n\fbeen dormant for over fifteen years, although Appellants allege that Lance’s parents\n\nsquandered a share of the settlement proceeds, we cannot conclude from the record\n\nthat an actual conflict existed at the time the district court approved the settlement.\n\nFor these reasons, we hold that Rule 17(c) did not require the district court to sua\n\nsponte appoint a guardian ad litem and that the district court properly exercised\n\npersonal jurisdiction over Lance. Accordingly, the judgment was not void and\n\nAppellants are entitled to no relief under Rule 60(b)(4).\n\n Appellants alternatively argue that Rule 60(b)(6), the catch-all provision,\n\npermits reopening in this case. This provision applies when the movant shows any\n\nreason justifying relief from the operation of the judgment. We have described Rule\n\n60(b)(6) as a “grand reservoir of equitable power to do justice in a particular case.”\n\nCashner v. Freedom Stores, Inc., 98 F.3d 572, 579 (10th Cir. 1996). However, a\n\ndistrict court may grant a Rule 60(b)(6) motion “only in extraordinary circumstances\n\nand only when necessary to accomplish justice.” Id. “We have sometimes found\n\nsuch extraordinary circumstances to exist when, after entry of judgment, events not\n\ncontemplated by the moving party render enforcement of the judgment inequitable.”\n\nId. The “broad power granted by clause (6) is not for the purpose of relieving a party\n\nfrom free, calculated, and deliberate choices he has made.” Id. We review the\n\ndistrict court’s decision to deny a Rule 60(b)(6) motion for an abuse of discretion.\n\nLaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir. 2003).\n\n A Rule 60(b)(6) motion must be made within a reasonable time. Fed. R. Civ.\n\nP. 60(c)(1). In this case, almost sixteen years passed between the settlement and\n\n 9\n\fAppellants’ motion to the district court. Appellant Barbara Lemmings has cared for\n\nLance since 2011 even though she did not become his guardian until 2017. As the\n\ndistrict court noted, Appellant Barbara Lemmings knew of the manner in which\n\npayment was being made for Lance’s care in 2011, but waited until 2017 to file her\n\nmotion. In the context of this case, a motion made sixteen years after the entry of\n\njudgment is not reasonable.\n\n The district court further denied the Rule 60(b)(6) motion on the ground that\n\nmistakes that led to entering into an “improvident bargain” do not provide a basis for\n\nrelief. Rule 60(b)(6) cannot be used to set aside “a free, counseled, deliberate choice\n\nwhose consequences in hindsight are unfortunate.” Cashner, 98 F.3d at 580. Thus,\n\neven if the settlement upon which the parties agreed constituted a bad deal in\n\nhindsight, there is “nothing sufficiently ‘unusual or compelling’ about making a bad\n\nbargain to warrant relief under Rule 60(b)(6).” Id. Accordingly, we conclude that\n\nthe district court did not abuse its discretion in denying Appellants’ Rule 60(b)(6)\n\nmotion.\n\n B.\n\n Appellants further seek access to the sealed transcript of the fairness hearing.\n\nCourt documents “are covered by a common law right of access.” United States v.\n\nMcVeigh, 119 F.3d 806, 811 (10th Cir. 1997). “Under that doctrine, judicial\n\ndocuments are presumptively available to the public, but may be sealed if the right to\n\naccess is outweighed by the interests favoring nondisclosure.” Id. “Once a court\n\norders documents before it sealed, the court continues to have authority to enforce its\n\n 10\n\forder sealing those documents, as well as authority to loosen or eliminate any\n\nrestrictions on the sealed documents.” United States v. Pickard, 733 F.3d 1297, 1300\n\n(10th Cir. 2013). “Challenges to closure decisions based on the common law right of\n\naccess are reviewed for abuse of discretion.” McVeigh, 119 F.3d at 811; see also\n\nPickard, 733 F.3d at 1302 (reviewing decision to seal or unseal documents for an\n\nabuse of discretion).\n\n In this case, the district court denied Appellants access to the sealed transcript.\n\nThe district court concluded that because it denied intervention, Appellants remained\n\nnonparties to the case and were, therefore, not entitled to access.3 We agree with the\n\ndistrict court that Appellants, as of now, are non-parties to the action and are not\n\nentitled to the sealed transcript in this capacity.4 That is not to say Appellants cannot\n\nstill obtain the sealed transcript in another manner. Appellants became guardians for\n\n\n\n 3\n Appellants allege that the government lacks standing to oppose their request\nfor access to the sealed transcript and in doing so violated its formal regulatory\nmandates. In support of this argument, Appellants cite 28 C.F.R. § 50.23, which\nprovides that the government’s policy is not to enter into final settlement agreements\nor consent decrees that are subject to confidentiality provisions, or to seek or concur\nin the sealing of such documents. In this case, the settlement agreement provides that\nit may be made public in its entirety. 28 C.F.R. § 50.23 does not speak to a district\ncourt’s decision to grant or deny a non-party’s access to sealed court records.\nAccordingly, Appellants’ argument that the government has no standing to oppose\nunsealing court records is without merit.\n 4\n On appeal, Appellants complain the district court characterized them as\nintervenors rather than as Lance’s guardians. But Appellants ignore that they\ncharacterized themselves as intervenors rather than as an existing Plaintiff. Indeed,\nin their initial motion to the district court, Appellants asked the district court “to\nallow them to intervene as a party in this matter” in order to modify the terms of the\nIrrevocable Governmental Trust.\n 11\n\fLance, a party, in 2017. At no time did Appellants seek permissive intervention for\n\nthe limited purpose of accessing the sealed transcript. Nor did Appellants seek to\n\nsubstitute themselves in place of Lance’s parents as parties to this civil action and\n\nsimply ask for the transcript by standing in Lance’s shoes. Had Appellants sought\n\nthe transcript in a correct manner, the district court would have abused its discretion\n\nin denying their request. Until Appellants either substitute in the action or intervene\n\nfor the limited purpose of obtaining the transcript, they are nonparties not entitled to\n\nthe transcript.\n\n III.\n\n For the foregoing reasons, the district court’s judgment is AFFIRMED.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368653/", "author_raw": "CARSON, Circuit Judge."}]}	MCHUGH	MURPHY	CARSON	1	{"McHUGH": ", Circuit", "MURPHY": ", Circuit", "CARSON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591400/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,672	Christopher HOBDY, Petitioner-Appellee, v. Rick RAEMISCH, Executive Director, Colorado Department of Corrections; Phil Weiser, Attorney General for State of Colorado, Respondents-Appellants.	Hobdy v. Raemisch	2019-02-19	18-1047	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Briscoe, Holmes, McHUGH", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 19, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n CHRISTOPHER HOBDY,\n\n Petitioner - Appellee,\n\n v. No. 18-1047\n\n RICK RAEMISCH, Executive Director,\n Colorado Department of Corrections; PHIL\n WEISER, Attorney General for State of\n Colorado,\n\n Respondents - Appellants.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:15-CV-01745-RPM)\n _________________________________\n\nLisa K. Michaels, Assistant Attorney General (Phil Weiser, Attorney General, with her\non the briefs), Criminal Appeals Section, Office of the Attorney General for the State of\nColorado, Denver, Colorado, appearing for Appellants.\n\nKathleen A. Lord, Lord Law Firm, LLC, Denver, Colorado, appearing for Appellee.\n _________________________________\n\nBefore BRISCOE, HOLMES, and McHUGH, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n\n\n \n Pursuant to Fed. R. App. P. 43(c)(2), Phil Weiser is substituted for Cynthia\nCoffman as an Appellant in this case.\n\f Petitioner Christopher Hobdy, a Colorado state prisoner serving a lengthy\n\nsentence for first degree assault and aggravated robbery, filed an application for\n\nfederal habeas relief pursuant to 28 U.S.C. § 2254. The district court granted\n\nHobdy’s application and ordered the State of Colorado to retry him within ninety\n\ndays. Respondents Rick Raemisch, the Executive Director of the Colorado\n\nDepartment of Corrections, and Phil Weiser, the Attorney General for the State of\n\nColorado, now appeal from the district court’s decision. Exercising jurisdiction\n\npursuant to 28 U.S.C. § 1291, we reverse the decision of the district court and\n\nremand with directions to enter judgment in favor of respondents.\n\n I\n\n The underlying facts of Hobdy’s case\n\n The Colorado Court of Appeals (CCA), in addressing Hobdy’s direct appeal,\n\nsummarized the underlying facts of Hobdy’s case:\n\n The criminal charges against [Hobdy] arose from an assault on the\n victim[, Jerry Williams,] outside a convenience store [on May 15,\n 1997]. The victim was a police officer [with the City of Aurora,\n Colorado,] who had a terminal illness and was living in a hospice at the\n time of the assault.\n\n The victim had arrived at the store late at night [shortly after 1 a.m.] to\n purchase a few items. After leaving the store, he used the outside\n payphone. While the victim was on the phone, [Hobdy], who had made\n a purchase at the store shortly after the victim had left the store,\n approached the victim and asked him for a quarter. The victim said he\n did not have a quarter, and [Hobdy] then went back into the store.\n\n After making his phone call, the victim began walking back to the\n hospice. He heard footsteps behind him and saw that [Hobdy] was\n following him. [Hobdy] uttered a racial slur [i.e., “nigger”] and told the\n victim, “I’m going to get you.” He then hit the victim with a shovel.\n\n 2\n\f The victim fell to the ground, and his possessions fell out of his pocket.\n [Hobdy] then picked up the items and ran away.\n\n The victim then went back into the store and told the clerk to call 911.\n Believing that his assailant would be depicted on the store’s video\n surveillance tape, the victim asked the clerk to retrieve the tape. He\n provided police a description of his assailant.\n\n The following day, the police showed [the victim] three still\n photographs they had made of [Hobdy] from the surveillance video\n tape. They did not know his identity at that time. From the photos, the\n victim identified [Hobdy] as his assailant.\n\n\nState v. Hobdy, No. 98CA1361 at 1–2 (Colo. App. Mar. 30, 2000) (Hobdy I),\n\navailable at Aplt. App., Vol. 2 at 13.\n\n The victim, Williams, gave the police an audiotaped interview the day after the\n\nattack.\n\n Hobdy’s state trial proceedings\n\n On May 22, 1997, Hobdy was charged by information in Arapahoe County\n\nDistrict Court with two counts of attempted first degree murder (one count alleged\n\n“after deliberation” and the second count alleged “felony murder”), one count of first\n\ndegree assault, and one count of aggravated robbery. Aplt. App., Vol. 3 at 24.\n\n On the same day the information was filed, the prosecution filed a motion\n\nseeking permission to depose Williams who, the motion noted, was “residing in a\n\nhospice and . . . dying of cancer.” Id. at 25. The state trial court granted the motion\n\nand the deposition of Williams was taken in May and June of 1997. Williams died in\n\nAugust of 1997.\n\n\n\n 3\n\f The case was tried to a jury on March 9–20, 1998. The prosecution’s evidence\n\nincluded, among other things, the audiotaped interview that Williams gave to police\n\nthe day after the attack and the transcript of Williams’ deposition, which was read to\n\nthe jury.\n\n Hobdy’s “defense [at trial] was misidentification.” Id., Vol. 2 at 168. Hobdy\n\nadmitted being in the convenience store that evening, but he denied attacking\n\nWilliams. According to Hobdy, he had been drinking at a nearby bar, left briefly to\n\ngo to the convenience store, and then returned to the bar to meet his friends. “The\n\nthrust of [Hobdy’s] defense was that due to the substantial pain medication the victim\n\nwas taking at the time, any identification or testimony on his part was not credible.”\n\nId., Vol. 1 at 195. “The victim was established to be regularly taking Morphine,\n\nHaldol, Ativan, Robaxin, Dilantin, Benadryl, Decadron, and Reglan.” Id.\n\n “To rebut this defense, the [State] called two medical doctors,” one of whom\n\n“treated the victim at the emergency room after the attack, and the other [of whom]\n\nwas the victim’s regular oncologist.” Id. “Together, they opined that the victim’s\n\nmental faculties were not affected by the medications the victim was taking at the\n\ntime of the attack such that they would impair his ability to make a positive\n\nidentification.” Id. at 196. Hobdy “did not offer his own medical expert to refute the\n\ntestimony of the two doctors called by the [State].” Id. at 169. But Hobdy’s “[t]rial\n\ncounsel did cross examine the witnesses, based on medical records and drug\n\ninformation, and also elicited specific examples of the victim suffering from\n\n\n\n 4\n\fhallucinations, confusion, drowsiness, and other impairments related to his\n\nmedications.” Id.\n\n The jury deliberations began later in the day on March 18, 1998, and continued\n\nthrough the next two days, March 19–20, 1998. During those deliberations, the jury\n\nsent several notes to the state trial court. To begin with, at approximately 11:35 a.m.\n\non the first full day of deliberations—March 19, 1998—the jury sent a note to the\n\ntrial court asking for permission to listen to the 911 tape recording and to watch the\n\n7-11 surveillance video. The state trial court granted both of those requests.\n\n Later that same day, at approximately 3:37 p.m., the jury sent a note to the\n\nstate trial court asking two questions. The first question stated: “May we look at\n\nJerry William’s [sic] deposition testimony?” Id., Vol. 4 at 147, 152–53. The second\n\nquestion said:\n\n We are struggling with coming to agreement with the creditability [sic]\n of Jerry Williams’ testimony. We have been debating this issue for\n most of the day. Since this testimony is key to coming to a concensus\n [sic] we believe that coming to a verdict will be difficult. Convictions\n remain firm on both sides. Due to evidence provided and its\n interpretation by individual jurors we are concerned that a verdict may\n not be attainable.\n\nId. at 149, 153.\n\n The district court responded to the jury’s first question with a written answer\n\nstating, “you may request in writing that the entire Jerry Williams’ depositions be\n\nread to you in Court as was done during the trial.” Id. at 160. After receiving that\n\nwritten answer, the jury contacted the court “and indicated they [we]re waiting for an\n\nanswer on the second question.” Id. at 160–61. The state trial court then responded\n\n 5\n\fto the jury’s second question by sending them back a written note stating: “The court\n\nmust ask you whether you are making any progress towards a unanimous verdict or\n\nare deadlocked?” Id. at 149, 163. The jury responded with one word: “Deadlocked.”\n\nId. at 149. After receiving this response, the state trial court read the modified Allen\n\ninstruction to the jury and sent them back to deliberate. Id. at 164–65.\n\n Later that afternoon, the jury sent a note to the trial court outlining its “[p]lan\n\nfor” the next day. Id. at 151. The note stated that the plan was to “1) hear taped\n\ninterview of Jerry Williams” and “2) hear all three depositions of Jerry Williams read\n\nif possible by impartial parties.” Id. The state trial court responded that it “w[ould]\n\nattempt to accommodate [their] request” the following day, March 20, 1998. Id.\n\n At the outset of the following day, Friday, March 20, 1998, the state trial court\n\nallowed the jury to first “hear the taped interview of Jerry Williams.” Id. at 183. The\n\nstate trial court then arranged for several people to read Williams’ deposition\n\ntranscripts. After that reading was complete, the jury was sent back to deliberate.\n\n At some point that afternoon, the jury sent out a note asking, “Can we have the\n\nlarge sign that was in the closing arguments re: Reasonable doubt? Elements of each\n\ncrime?” Id. at 203. The state trial court responded: “The information requested is\n\ncontained in the instructions of the court – if you need additional copies of some or\n\nall the instructions please specify by number.” Id.\n\n The jury then sent out another note stating, “We want the testimony of the\n\nperson that was on the stand when they interjected the tape of Chris Hobdy & also\n\n\n\n 6\n\fWANT, NeeD [sic] to hear the tape of defendant. Thank you.” Id. at 204 (emphasis\n\nin original). The state trial court responded to this note by stating:\n\n The court reporter who reported Detective Days [sic] testimony while a\n portion of Chris Hodby [sic] tape was played is not here and that\n testimony is not available until Monday. The only request that the court\n can grant today is to play that portion of Chris Hobdy’s tape that was\n played for you during the trial.\n\nId. at 205. The jury responded: “We would like to listen to the taped interview\n\ntoday.” Id. The state trial court granted that request.\n\n According to the record, the jury also, at some unknown point in the\n\ndeliberations, wrote a note to the court that said:\n\n Deliberations have broken down. We find ourselves attacking each\n other not allowing the [sic] us to move toward a verdict. We do not\n know where to go from here. We have examined all the evidence given\n to us and still are deadlocked. We don’t know what else to look at.\n\nId., Vol. 2 at 8. It is unclear if this “attacking each other” note was in fact delivered\n\nby the jury to the state trial court and, if so, when that occurred.\n\n At approximately 4:50 p.m. on March 20, 1998, the state trial court spoke to\n\nthe jurors about recessing for the weekend and reconvening the following Monday.\n\nId., Vol. 4 at 217–18. The jury “indicated they’d like some more time,” so the state\n\ntrial court granted that request. Id. at 218. Later that day—it is unclear from the\n\nrecord precisely what time—the jury returned with a verdict. The jury found Hobdy\n\nnot guilty of the two attempted murder charges. But it convicted him of first degree\n\nassault and aggravated robbery. The jury also found that Hobdy “did use or possess\n\n\n\n\n 7\n\fand threaten the use of a deadly weapon during the commission of the crime or\n\nduring the immediate flight therefrom.” Id. at 220.\n\n The state trial court sentenced Hobdy to consecutive terms of imprisonment of\n\ntwenty-eight years’ and thirty years’ imprisonment for the two counts of conviction,\n\nresulting in an aggregate sentence of fifty-eight years.\n\n Hobdy’s direct appeal\n\n Hobdy filed a direct appeal, asserting five general propositions of error. The\n\nCCA affirmed Hobdy’s convictions in an unpublished opinion issued on March 30,\n\n2000. Hobdy I, No. 98CA1361 at 15. Hobdy filed a petition for writ of certiorari\n\nwith the Colorado Supreme Court, but that was denied on September 5, 2000. There\n\nis no indication in the record that Hobdy filed a petition for writ of certiorari with the\n\nUnited States Supreme Court.\n\n Hobdy’s Rule 35(b) motion for reduction of sentence\n\n On December 13, 2000, Hobdy filed a motion for reduction of sentence\n\npursuant to Colo. R. Crim. P. 35(b). The state trial court denied that motion on\n\nDecember 29, 2000. Hobdy did not appeal from that ruling.\n\n Hobdy’s Rule 35(c) postconviction proceeding\n\n On August 20, 2001, Hobdy filed a motion for state postconviction relief\n\npursuant to Colo. R. Crim. P. 35(c) alleging that his trial counsel was ineffective in\n\nthe following respects: (1) failing to adequately investigate whether the victim was\n\ncompetent to testify because of his terminal illness and pain medication; (2) failing to\n\ndetermine whether the victim was competent to make a proper identification at the\n\n 8\n\ftime of the assault; (3) failing to consult experts skilled in eyewitness identification\n\nand medication and pain issues, including an intoxication expert; (4) failing to seek a\n\nchange of venue due to the fact that the victim worked as a police officer in the same\n\njurisdiction in which Hobdy was tried; (5) failing to pursue a viable alternate suspect\n\ntheory; (6) failing to adequately investigate alibi witnesses; (7) failing to account for\n\nthe difficulties inherent in cross-racial identifications; and (8) failing to object when\n\nthe state trial court, upon being advised by the jury that it was deadlocked, did not\n\nmake the inquiries required under People v. Lewis, 676 P.2d 682 (Colo. 1984). Aplt.\n\nApp., Vol. 2 at 30, 141. Hobdy also stated in his motion that he wanted to reserve\n\nthe right to supplement the motion.\n\n In July of 2005, Hobdy, through counsel, filed an amended motion for\n\npostconviction relief pursuant to Colo. R. Crim. P. 35(c). The amended motion\n\nincluded three new claims: (1) “[f]ailure of appellate counsel to advise the [CCA]\n\nthat the trial court abused its discretion in finding Williams competent to testify,” id.\n\nat 88; (2) “[f]ailure of appellate counsel . . . to advise the [CCA] that there [wa]s no\n\ntranscript establishing that the trial court ever acknowledged the jury’s [‘attacking\n\neach other’] note” or made “Hobdy and his counsel . . . aware of” the note and,\n\nrelatedly, failure of appellate counsel to argue that “it [wa]s structural error for [the]\n\ntrial court to fail to make an [sic] preserve a record” regarding that jury note, id.\n\nat 92–93; and (3) “Hobdy received an enhanced sentence . . . in violation of the Sixth\n\nAmendment jury trial guarantee,” as outlined by the Supreme Court in Blakely v.\n\n\n\n 9\n\fWashington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000),\n\nid. at 100.\n\n The state district court issued a decision on September 19, 2006, denying\n\nHobdy’s amended motion for relief under Colo. R. Crim. P. 35(c). The state district\n\ncourt concluded that the amended motion was successive and that, in addition,\n\nBlakely and Apprendi were inapplicable to Hobdy’s sentence.\n\n Hobdy appealed to the CCA. On September 25, 2008, the CCA issued an\n\nopinion concluding that Hobdy’s original Rule 35(c) motion was timely, had never\n\nbeen ruled on by the state district court, and that Hobdy was entitled to an evidentiary\n\nhearing on the ineffective assistance of trial counsel claims asserted in the original\n\nmotion. The CCA also concluded that the claims asserted in Hobdy’s amended\n\nmotion were time-barred unless Hobdy could establish justifiable excuse or excusable\n\nneglect.\n\n On remand, the state district court held an evidentiary hearing and heard\n\ntestimony from three defense witnesses: an expert in psychopharmacology, a legal\n\nexpert in the field of postconviction relief, and the lawyer who drafted and filed the\n\namended Rule 35(c) motion on Hobdy’s behalf.\n\n Following the hearing, the state district court issued a written order denying\n\nHobdy’s Rule 35(c) motion. At the outset of its order, the state district court noted\n\nthat Hobdy effectively abandoned four of the ineffective assistance of trial counsel\n\nclaims asserted in his original Rule 35(c) motion—failure to challenge “venue,\n\nfailure to raise alternate suspect theories, inadequate alibi witness investigation, and\n\n 10\n\ffailure to account for cross-racial identification”—by failing to address those issues\n\nin subsequent briefing or at the evidentiary hearing. Id. at 166. The state district\n\ncourt in turn concluded that the three new claims asserted by Hobdy in his amended\n\nRule 35(c) motion did not “meet the justifiable excuse or excusable neglect\n\nexception” and were therefore time-barred. Id. at 169. In reaching this conclusion,\n\nthe state district court found that “[t]he ‘attacking each other’ note [from the jury]\n\nappeared in the file and the record before the [CCA],” the CCA thus “had the benefit\n\nof the jury notes, including the ‘attacking each other’ note” when it resolved Hobdy’s\n\ndirect appeal, and that the CCA “addressed all of the notes in question.” Id.at 170–\n\n71. The state district court further concluded “that there [wa]s no justifiable excuse\n\nor excusable neglect for” the “untimely filing [of] the supplement to the original Rule\n\n35(c)” motion, and that, consequently, “all additional issues contained in the\n\n[amended Rule 35(c) motion], including any issues surrounding the [‘attacking each\n\nother’] jury note, [we]re time-barred . . . and w[ould] not be further considered.” Id.\n\nat 171–72.\n\n As for the claim asserted by Hobdy in his original Rule 35(c) motion that trial\n\ncounsel was ineffective for failing to retain and present an expert in\n\npsychopharmacology, the state district court concluded “that failing to retain” such\n\nan “expert fell below the performance of reasonably effective assistance,” but that\n\nthis “error on the part of trial counsel” did not “create[] any real probability that the\n\njury would not have convicted” Hobdy or otherwise “undermine[d] th[e] Court’s\n\nconfidence in the jury’s verdict.” Id. at 174. The court explained “that because the\n\n 11\n\ftype and extent of medications taken by the victim were made known to the jury, the\n\nlack of additional expert testimony from” the defense “d[id] not create a reasonable\n\nprobability of a different result in the original trial.” Id. at 172.\n\n Hobdy appealed to the CCA. On August 14, 2014, the CCA issued an\n\nunpublished opinion affirming the state district court’s order. The CCA “conclude[d]\n\nthat the record support[ed] the postconviction court’s determination that defendant\n\ndid not prove that, had [trial] counsel retained an expert [in psychopharmacology] . . .\n\nto testify at trial, there was a reasonable probability that the result of the proceeding\n\nwould have been different.” Id. at 234. The CCA explained that it “reach[ed] this\n\nconclusion because [Hobdy’s] first attorney, through cross-examination, submitted to\n\nthe jury a great deal of the information about which the psychopharmacologist\n\ntestified at the remand hearing” on the Rule 35(c) motion. Id. The CCA also noted\n\nthat the jury was able to watch the surveillance tape from the convenience store and\n\nlisten to the recording of the 911 call and, in turn, “evaluat[e] the victim’s mental\n\nacuity at that time” based on this evidence. Id. at 237. In addition, the CCA noted\n\nthat “[t]he jury was aware of the medications that the victim was taking; it heard\n\nabout their side effects; it learned of their effect on the victim; and, although it\n\n‘strugg[led]’ to ‘agree[]’ about the victim’s credibility, it obviously overcame that\n\nstruggle and reached an agreement.” Id. at 238. “Under these circumstances,” the\n\nCCA “conclude[d] that there [wa]s not a reasonable probability, meaning a\n\nprobability sufficient to undermine [its] confidence in the outcome, that had the\n\nadditional information from an expert [psychopharmacologist] . . . been presented to\n\n 12\n\fthe jury, the result would have been different.” Id. at 238–39. The CCA further\n\nstated: “Defendant did not establish that there was a reasonable probability that such\n\ntestimony would have been the ‘ounce that makes the pound’ that would have led the\n\njury to acquit instead of to convict.” Id. at 239. The CCA thus concluded that\n\nHobdy’s “ineffective assistance claim as to his first attorney fail[ed].” Id. at 240.\n\n The CCA also rejected Hobdy’s challenge to the state district court’s\n\nconclusion that “there was no justifiable excuse or excusable neglect for the untimely\n\nfiling of his [amended] postconviction motion.” Id. The CCA noted that the\n\namended postconviction motion was “presumptively time barred” under Colorado\n\nlaw. Id. at 243. And the CCA agreed with the state district court that there were no\n\nfacts or circumstances that provided a justifiable excuse or excusable neglect to\n\novercome that presumptive time bar. In particular, the CCA rejected Hobdy’s\n\nargument that his fourth attorney, i.e., the one who prepared and filed the amended\n\npostconviction motion, was ineffective. The CCA noted that “[t]he fourth attorney\n\ndid not start working on the case until 2004, which was after the three-year period for\n\nfiling postconviction motions had lapsed.” Id. at 244–45. The CCA concluded that\n\n“the fourth attorney could not have been ineffective” for the reason that “[t]he fourth\n\nattorney could not . . . have filed a timely second postconviction motion.” Id. at 245.\n\n Hobdy filed a petition for writ of certiorari with the Colorado Supreme Court.\n\nThat petition was denied on March 2, 2015.\n\n Hobdy’s filing of his federal habeas petition\n\n\n\n 13\n\f On August 12, 2015, Hobdy, through counsel, initiated these federal habeas\n\nproceedings by filing an application for writ of habeas corpus pursuant to 28 U.S.C.\n\n§ 2254. The application alleged four claims for relief. 1 Claim One alleged\n\nineffective assistance of trial counsel for failing to consult with and present testimony\n\nfrom an expert in psychopharmacology. Claim Two alleged that Hobdy was “denied\n\nhis right to counsel, to be present, and to a fair trial” resulting from the state trial\n\ncourt’s “failure to disclose the ‘attacking each other’ . . . note from the jury.” Aplt.\n\nApp., Vol. 1 at 31. Claim Three alleged ineffective assistance of appellate counsel\n\nfor failing “to (a) ensure a complete record on appeal (b) raise the claims set forth in\n\nClaim Two, and (c) alert the appellate court that the trial court had not told the\n\nparties about the jury note that stated the jurors were ‘attacking each other’ and were\n\n‘still deadlocked.’” Id. at 32. The final claim for relief alleged cumulative error. Id.\n\nat 34.\n\n On November 30, 2017, the district court issued a memorandum opinion and\n\norder granting federal habeas relief in favor of Hobdy. The opinion and order began\n\nby addressing Hobdy’s ineffective assistance of trial counsel claim. In analyzing this\n\nclaim, the district court noted that the state district court had concluded that Hobdy’s\n\ntrial counsel’s performance on this issue amounted to incompetence under prevailing\n\nstandards, and that the CCA had silently affirmed that conclusion. Consequently, the\n\n\n\n 1\n The application included three additional claims, but Hobdy withdrew those\nclaims before the district court could rule on them. Dist. Ct. Docket No. 41 at 9.\nThus, those claims are not at issue in this appeal.\n 14\n\fdistrict court concluded that it was “obliged to accept” what it described as this “final\n\ndetermination” under 28 U.S.C. § 2254(e)(1). Id. at 198. The district court in turn\n\nconcluded that “[t]he only issue to be determined” was “whether the [CCA’s]\n\ndetermination of no prejudice [wa]s contrary to or a misapplication of clearly\n\nestablished law as determined by the Supreme Court or a decision based on an\n\nunreasonable determination of the facts in light of the evidence presented in the state\n\ncourt proceeding.” Id. (citing 28 U.S.C. § 2254(d)(1) and (2)). The district court\n\nconcluded “that the [CCA] incorrectly considered it necessary for [Hobdy] to show\n\nthat the different result was required to be an acquittal.” Id. Clearly established\n\nSupreme Court precedent, the district court concluded, “does not require a defendant\n\nto establish a reasonable probability that the jury would have acquitted, but rather\n\nthat the result of the proceeding would have been different.” Id. Instead, the district\n\ncourt stated, “[t]here [we]re other possible outcomes, including a hung jury, which\n\nwould have been more favorable for Hobdy.” Id.\n\n Continuing, the district court concluded “there [wa]s a reasonable probability\n\nthere would have been a different result absent [trial] counsel’s ineffective\n\nassistance.” Id. The district court explained: “There would in all probability have\n\nbeen a mistrial based on a hung jury—that is at least one juror having a reasonable\n\ndoubt as to the credibility of the testimony of . . . Williams.” Id. at 198–99. In\n\narriving at this conclusion, the district court noted that “[t]here was no evidence to\n\ncorroborate [Williams’] story” about what had occurred, and “[t]he jury obviously\n\nhad great difficulty in making that determination as revealed in the notes to the\n\n 15\n\fjudge.” Id. at 199. The district court further concluded that “[t]he scenario described\n\nby the [CCA] in the opinion on direct appeal [wa]s incomplete.” Id. In particular,\n\nthe district court noted that “[t]he record contain[ed] a note” from the jury indicating\n\nit was deadlocked “with no indication of when or if it was received by the [state trial]\n\ncourt and if there was any response to it.” Id. at 200. The district court stated that\n\n“defense counsel was not made aware of [the note] until post conviction\n\nproceedings.” Id. In addition, the district court noted that at approximately 4:50\n\np.m. on the last day of the jury’s deliberations, the state trial judge met with the jury\n\nabout recessing for the weekend and reconvening the following Monday, but that he\n\ndid so “outside of counsel’s presence and without making a record.” Id. “Thus,” the\n\ndistrict court noted, “there [wa]s no way to know what communications occurred\n\nbetween the [state trial] judge and the jurors.” Id.\n\n The district court concluded that “[t]his haphazard handling of jury questions,\n\nfailure to inform counsel of a jury communication, and failure to make a proper\n\nrecord of exchanges between the judge and jury [wa]s structural error which\n\nrequire[d] vacation of the conviction.” Id. (citing United States v. Cronic, 466 U.S.\n\n648, 659 n.25 (1984)). The district court then stated: “For the foregoing reasons, the\n\nCourt concludes that . . . Hobdy received ineffective assistance of counsel, in\n\nviolation of the Sixth Amendment, and [wa]s accordingly ‘in custody in violation of\n\nthe Constitution of the United States.’” Id. at 200–01 (quoting 28 U.S.C. § 2254(a)).\n\nThe district court concluded that Hobdy was “therefore entitled to habeas relief” and\n\nthat it was unnecessary for it “to consider the other claims and arguments submitted\n\n 16\n\fin support of th[e] Application.” Id. at 201. The district court ordered “[t]he State of\n\nColorado [to] re-try . . . Hobdy on the charges upon which he was convicted within\n\n90 days from the entry of judgment, failing which he shall be released from custody\n\non those convictions, which are vacated by this Court and upon which no further\n\nproceedings shall be pursued.” Id.\n\n The district court entered judgment in the case on November 30, 2017.\n\n On December 22, 2017, respondents filed three motions with the district court.\n\nThe first was a motion for clarification. Id. at 210. Respondents asserted in that\n\nmotion that “[t]he handling of one of the jury notes was raised [by Hobdy] as a\n\nseparate claim in the habeas application, specifically, claim two, which alleged that\n\n[Hobdy] ‘was denied his right to counsel, to be present, and to a fair trial . . . .” Id.\n\nat 212. Respondents in turn noted that the district court’s decision “d[id] not\n\notherwise contain an explicit ruling on claim two,” even though it relied heavily on\n\nthe jury note issue in concluding that Hobdy was prejudiced by his counsel’s failure\n\nto present testimony from an expert in psychopharmacology regarding the effects of\n\nWilliams’ medications on Williams’ cognitive abilities. Id. Respondents asserted\n\nthat “[i]t [wa]s unclear to [them] whether the quoted language from the order\n\nregarding the handling of the jury questions was part of the prejudice analysis for\n\nclaim one or was a ruling on claim two.” Id. Respondents asserted that it was their\n\nintention “to exercise their right to appeal,” and “they want[ed] to ensure that their\n\nunderstanding of the court’s order [wa]s correct.” Id. Thus, respondents requested\n\nthat the district court “clarify whether it ruled on claim two.” Id. at 213.\n\n 17\n\f The second motion filed by respondents was a motion for ruling on\n\noutstanding claims. Respondents argued therein that, “[w]ithout a ruling on\n\n[Hobdy’s] remaining claims,” the district court’s “order m[ight] not be a final,\n\nappealable order, meaning that the court of appeals would lack jurisdiction to hear an\n\nappeal.” Id. at 216. Consequently, respondents asked the district court to amend its\n\norder to include language “deny[ing]” the remaining claims on the merits. Id. at 217.\n\n The third and final motion filed by respondents was a motion to alter the order\n\nand judgment. Respondents argued that the district court “was not required to adopt\n\nthe state court’s ruling on counsel’s performance” under the first prong of Strickland\n\nv. Washington, 466 U.S. 668 (1984). Aplt. App., Vol. 1 at 222. Rather, respondents\n\nargued, because the district court determined “that one of § 2254(d)’s exceptions had\n\nbeen met, [Hobdy’s] claim, including the deficient performance prong, was subject to\n\nde novo review.” Id. (citing Fry v. Pliler, 551 U.S. 112, 119 (2007), and Berghuis v.\n\nThompkins, 560 U.S. 370, 390 (2010)). Respondents also argued that “the record\n\nsupport[ed] the conclusion that [Hobdy’s trial] counsel made a reasonable strategic\n\ndecision to elicit evidence of the effects of the victim’s medications on his memory\n\nand ability to perceive from the victim’s medical providers and other lay witnesses.”\n\nId. at 223–24.\n\n On January 5, 2018, the district court issued a two-page written order\n\naddressing respondents’ three post-judgment motions. The order first stated that “the\n\nApplicant was denied the assistance of trial counsel in responding to the jury’s\n\nquestions in violation of the Sixth Amendment as alleged in Claim Two.” Id. at 228.\n\n 18\n\fThe order in turn stated: “this Court agrees with the [state] district court’s\n\ndetermination that the failure of the defense attorney to retain and present testimony\n\nfrom a medical expert as to the effects of the victim’s intake of prescription\n\nmedications on his ability to perceive, recall and relate was below the standard of\n\ncare in violation of the first prong of Strickland.” Id. Lastly, the order stated “that\n\nthe Third Claim for Relief,” which asserted ineffective assistance of appellate\n\ncounsel, “[wa]s denied.”2 Id.\n\n The district court issued an amended judgment that same day, January 5, 2018.\n\n On January 10, 2018, respondents filed a motion seeking additional\n\nclarification prior to appeal. Id. at 232. The motion “request[ed] that the [district\n\ncourt] clarify whether it granted relief on Claim Two” in Hobdy’s application. Id.\n\nat 234.\n\n On January 11, 2018, the district court issued an order denying respondents’\n\nmotion for additional clarification. The order contained one sentence: “it should be\n\napparent to anyone reading the Order on Post-Judgment Motions (Doc. 70) that this\n\nCourt has ruled on the merits of Claim Two, that this violation of the Sixth\n\nAmendment is an additional ground for granting the Writ of Habeas Corpus and that\n\nthe claim was not procedurally defaulted.” Id. at 236.\n\n\n\n 2\n The district court’s order did not expressly mention the cumulative error\nclaim that was alleged in Hobdy’s application for federal habeas relief. But, because\nthe order expressly purported to address each of the three pending motions, we\nconstrue the order as implicitly denying relief on the cumulative error claim.\n\n 19\n\f Respondents filed a notice of appeal on February 2, 2018.\n\n\n\n II\n\n Respondents argue on appeal that the district court erred in granting federal\n\nhabeas relief to Hobdy on his “claims of ineffective assistance of counsel and denial\n\nof the right to presence.” Aplt. Br. at 1. For the reasons outlined below, we agree.3\n\n Standard of review\n\n “The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)\n\nrequires a state prisoner seeking federal habeas relief first to ‘exhaus[t] the remedies\n\navailable in the courts of the State.’” Kernan v. Hinojosa, 136 S. Ct. 1603, 1604\n\n(2016) (per curiam) (quoting 28 U.S.C. § 2254(b)(1)(A)). “If the state courts\n\nadjudicate the prisoner’s federal claim ‘on the merits,’ § 2254(d), then AEDPA\n\nmandates deferential, rather than de novo, review.” Id. Specifically, we cannot grant\n\nrelief unless that adjudication:\n\n (1) resulted in a decision that was contrary to, or involved an\n unreasonable application of, clearly established Federal law, as\n determined by the Supreme Court of the United States; or\n\n (2) resulted in a decision that was based on an unreasonable\n determination of the facts in light of the evidence presented in the State\n court proceedings.\n\n\n\n 3\n Respondents also argue that the district court abused its discretion when, in\nthe course of granting federal habeas relief to Hobdy, it barred the state from\nconducting any retrial after a period of ninety days. Because we conclude that the\ndistrict court erred in granting federal habeas relief to Hobdy, it is unnecessary for us\nto address this issue.\n 20\n\f28 U.S.C. § 2254(d)(1)–(2).\n\n “‘Clearly established Federal Law’ refers to the Supreme Court’s holdings, not\n\nits dicta.” Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (citing Williams\n\nv. Taylor, 529 U.S. 362, 412 (2000)). “A state-court decision is only contrary to\n\nclearly established federal law if it ‘arrives at a conclusion opposite to that reached\n\nby’ the Supreme Court, or ‘decides a case differently’ than the Court on a ‘set of\n\nmaterially indistinguishable facts.’” Id. (quoting Williams, 529 U.S. at 412–13).\n\n“But a state court need not cite the Court’s cases or, for that matter, even be aware of\n\nthem.” Id. “So long as the state-court’s reasoning and result are not contrary to the\n\nCourt’s specific holdings, § 2254(d)(1) prohibits us from granting relief.” Id. (citing\n\nEarly v. Packer, 537 U.S. 3, 9 (2002) (per curiam)).\n\n “A state court’s decision unreasonably applies federal law if it ‘identifies the\n\ncorrect governing legal principle’ from the relevant Supreme Court decisions but\n\napplies those principles in an objectively unreasonable manner.” Id. (quoting\n\nWiggins v. Smith, 539 U.S. 510, 520 (2003)). “Critically, an ‘unreasonable\n\napplication of federal law is different from an incorrect application of federal law.’”\n\nId. (quoting Williams, 529 U.S. at 410). “[A] state court’s application of federal law\n\nis only unreasonable if ‘all fairminded jurists would agree the state court decision\n\nwas incorrect.’” Id. (quoting Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)).\n\n “Finally, a state-court decision unreasonably determines the facts if the state\n\ncourt ‘plainly misapprehend[ed] or misstate[d] the record in making [its] findings,\n\nand the misapprehension goes to a material factual issue that is central to petitioner’s\n\n 21\n\fclaim.’” Id. (quoting Byrd v. Workman, 645 F.3d 1159, 1170–72 (10th Cir. 2011)).\n\n“But this ‘daunting standard’ will be ‘satisfied in relatively few cases.’” Id. (quoting\n\nByrd, 645 F.3d at 1172).\n\n Ineffective assistance of trial counsel\n\n Respondents first argue that the district court erred in granting relief on the\n\nbasis of Claim One of Hobdy’s federal habeas application, which alleged that\n\nHobdy’s trial counsel was ineffective for failing to retain and present testimony from\n\nan expert in psychopharmacology. More specifically, respondents argue that the\n\ndistrict court erred in concluding that the CCA unreasonably applied Strickland when\n\nit rejected this claim on the merits. We agree with respondents.\n\n a) Clearly established federal law applicable to the claim\n\n The clearly established federal law applicable to this claim is the familiar two-\n\npart test outlined by the Supreme Court in Strickland. 466 U.S. at 687. Under the\n\nfirst part of that test, a “defendant must show that counsel’s performance was\n\ndeficient.” Id. at 668. “In light of the variety of circumstances faced by defense\n\ncounsel and the range of legitimate decisions regarding how best to represent a\n\ncriminal defendant, the performance inquiry necessarily turns on whether counsel’s\n\nassistance was reasonable considering all the circumstances.” Wong v. Belmontes,\n\n558 U.S. 15, 17 (2009) (per curiam) (internal quotation marks and brackets omitted).\n\n Under the second part of the test, a “defendant must show that the deficient\n\nperformance prejudiced the defense.” Strickland, 466 U.S. at 687. “This requires\n\nshowing that counsel’s errors were so serious as to deprive the defendant of a fair\n\n 22\n\ftrial, a trial whose result is reliable.” Id. “It is not enough for the defendant to show\n\nthat the errors had some conceivable effect on the outcome of the proceeding.” Id.\n\nat 693. “Virtually every act or omission of counsel would meet that test, and not\n\nevery error that conceivably could have influenced the outcome undermines the\n\nreliability of the result of the proceeding.” Id. (citation omitted). That said,\n\nhowever, “a defendant need not show that counsel’s deficient conduct more likely\n\nthan not altered the outcome in the case.” Id. “The result of a proceeding can be\n\nrendered unreliable, and hence the proceeding itself unfair, even if the errors of\n\ncounsel cannot be shown by a preponderance of the evidence to have determined the\n\noutcome.” Id. at 694. Thus, “[t]he defendant must show that there is a reasonable\n\nprobability that, but for counsel’s unprofessional errors, the result of the proceeding\n\nwould have been different.” Id. “A reasonable probability is a probability sufficient\n\nto undermine confidence in the outcome.” Id.\n\n “The governing legal standard [thus] plays a critical role in defining the\n\nquestion to be asked in assessing the prejudice from counsel’s errors.” Id. at 695.\n\n“When a defendant challenges a conviction, the question is whether there is a\n\nreasonable probability that, absent the errors, the factfinder would have had a\n\nreasonable doubt respecting guilt.” Id.\n\n “Unless a defendant makes both showings, it cannot be said that the conviction\n\nor death sentence resulted from a breakdown in the adversary process that renders the\n\nresult unreliable.” Id. at 687.\n\n\n\n 23\n\f b) The state district court’s analysis\n\n The state district court concluded, in addressing Hobdy’s Rule 35(c) motion\n\nfor postconviction relief, “that failing to retain a medical expert” to testify about the\n\nvictim’s medications and their effect on his ability to perceive, recall and relate “fell\n\nbelow the performance of reasonably effective assistance.” Aplt. App., Vol. 2 at 174.\n\nThe state district court explained that “[t]he People’s medical expert testimony\n\nshould not have been allowed to stand alone, especially given that the crux of\n\n[Hobdy’s] defense [at trial] was attacking the victim’s credibility.” Id. As for the\n\nsecond prong of the Strickland test, however, the state district court concluded that\n\ntrial counsel’s error did not “create[] any real probability that the jury would not have\n\nconvicted [Hobdy].” Id. The state district court explained that, due to Hobdy’s trial\n\ncounsel’s cross-examination of the state’s witnesses,4 “the jury was well aware that\n\nthe victim was not only taking morphine to manage his pain, but was taking many\n\nother powerful drugs,” including “on the night in question.” Id. at 175. Continuing,\n\nthe state district court noted that “[h]aving another expert, this one from the defense,\n\nto share complicated medical expert testimony, would not have materially changed\n\n[the jury’s] understanding with regard to the” credibility of the “victim’s testimony\n\n. . . .” Id. at 176.\n\n\n\n 4\n These witnesses included the victim’s oncologist, the emergency room doctor\nwho treated the victim after the assault, two hospice nurses, the victim’s girlfriend,\nand a friend of the victim.\n 24\n\f c) The CCA’s analysis\n\n The CCA, for its part, focused on the second prong of the Strickland test and\n\nrejected Hobdy’s argument “that, had his first attorney offered [an expert in\n\npsychopharmacology] to testify at trial, there [wa]s a reasonable possibility that the\n\ntrial’s result would have been different.” Id. at 232. In doing so, the CCA discussed\n\nin detail the testimony of the expert in psychopharmacology that Hobdy presented\n\n“during the remand hearing” on his Rule 35(c) motion. Id. The CCA noted:\n\n The psychopharmacologist testified about the combination of\n medications that the victim had been taking. He stated that this\n combination affects the central nervous system, and that it can cause\n “abnormal thinking.” He stated that the potential side effects of these\n medications include, among other things, hallucinations, confusion,\n fragmented memory, and blurred vision.\n\n The psychopharmacologist added that the victim was taking large\n doses of some of the medications. In a patient with an underperforming\n liver, like the victim, there was a higher potential to suffer side effects.\n He stated that he believed that the victim’s oncologist had minimized\n the potential side effects of the medications when testifying at trial, and\n that the oncologist did not address the issue in the context of whether\n the combination would affect someone’s ability to “accurately report\n information.”\n\n The psychopharmacologist noted that he had identified ninety-\n four instances in the record and in the transcripts of the victim’s\n depositions where the victim had suffered from the medications’ side\n effects or appeared to be intoxicated by the medications. He explained\n that these reactions “would . . . affect [the victim’s] ability to make\n judgment decisions and attend to what’s going on.”\n\n The psychopharmacologist testified that, on the night of the\n assault, the victim was “probably having side effects at the time of the\n [assault]” and that he did not believe the victim would be able to recall\n it reliably. He stated that, at the time of the assault, the victim “was\n\n 25\n\f operating in a continued and almost perpetual altered mental state that\n could be . . . described as a state of abnormal thinking.”\n\nId. at 232–33.\n\n The CCA then stated: “We conclude that the record supports the [state district]\n\ncourt’s determination that [Hobdy] did not prove that, had [trial] counsel retained an\n\nexpert like the psychopharmacologist to testify at trial, there was a reasonable\n\nprobability that the result of the proceeding would have been different.” Id. at 234.\n\nThe CCA explained that it “reach[ed] this conclusion because” Hobdy’s trial counsel,\n\n“through cross-examination, submitted to the jury a great deal of the information\n\nabout which the psychopharmacologist testified at the remand hearing.” Id. More\n\nspecifically, the CCA stated:\n\n We have compared the testimony presented at trial and the\n testimony offered at the remand hearing. The trial testimony from\n doctors, hospice nurses, and friends included statements about the\n medications the victim was taking at the time of the assault and their\n possible side effects, including confusion and hallucinations. Witnesses\n described specific instances when the victim had suffered these side\n effects. The first attorney elicited admissions from some of these\n witnesses that the high dosage of medications, combined with the\n victim’s physical condition, could have increased the likelihood and\n severity of those side effects.\n\n And these witnesses provided testimony from a perspective that a\n witness such as the psychopharmacologist could not have duplicated.\n They examined, treated, and interacted with the victim. They saw him;\n they spoke with him; some of them saw him and spoke with him over a\n significant period during which he was taking the medications; and\n some of them saw him and spoke with him a short time after the assault.\n\n Indeed, the psychopharmacologist testified that “[he] wasn’t there\n so [he couldn’t] absolutely say” whether the victim was having adverse\n side effects at the time of the assault. Instead, he was “asked to review\n the records and determine what is the likelihood of something occurring\n\n 26\n\f [sic].” Also, he stated that “it’s hard to know whether someone’s\n having some of the[] symptoms [caused by abnormal thinking] without\n assessing [the person] directly,” and that an evaluation of the extent to\n which a person was suffering from a medication’s side effects should\n include a physical examination of the individual. The expert conceded\n that he did not physically examine the victim.\n\n He also admitted that he had not watched a surveillance videotape\n or listened to a 911 recording, from which he could have observed and\n listened to the victim on the night of the assault. He stated that these\n recordings would have been significant in evaluating the victim’s\n mental acuity at that time. And the jury watched the videotape and\n listened to the 911 recording.\n\n ***\n\n The evidence that was presented at trial was sufficient to cause\n the jury to question the victim’s credibility. During the examination of\n one of the hospice nurses, a juror asked the nurse to repeat how many\n times the victim had taken morphine on the night of the assault. During\n deliberations, the jury submitted a note to the trial court, which stated,\n “We are struggling with coming to agreement with the credibility of [the\n victim’s] testimony.”\n\n The jury was aware of the medications that the victim was taking;\n it heard about their side effects; it learned of their effect on the victim;\n and, although it “struggl[ed” to “agree[]” about the victim’s credibility,\n it obviously overcame that struggle and reached an agreement. Under\n these circumstances, and based on the record before us, we conclude\n that there is not a reasonable probability, meaning a probability\n sufficient to undermine our confidence in the outcome, that had the\n additional information from an expert such as the psychopharmacologist\n been presented to the jury, the result would have been different.\n Defendant did not establish that there was a reasonable probability that\n such testimony would have been the “ounce that makes the pound” that\n would have led the jury to acquit instead of to convict.\n\nId. at 236–39.\n\n\n\n\n 27\n\f Thus, in sum, the CCA rejected Hobdy’s ineffective assistance of trial counsel\n\nclaim due to Hobdy’s “fail[ure] to establish prejudice,” and without directly\n\naddressing the first prong of Strickland. Id. at 240.\n\n d) The federal district court’s analysis\n\n As we have previously noted, the district court concluded that, under 28\n\nU.S.C. § 2254(e)(1), it was “obliged to accept” the state district court’s “final\n\ndetermination” regarding the first prong of the Strickland test. Aplt. App., Vol. 1\n\nat 198. The district court then examined the CCA’s analysis of the second prong of\n\nthe Strickland test and the CCA’s resulting determination that Hobdy was not\n\nprejudiced by his counsel’s allegedly deficient performance. Citing one particular\n\nsentence in the CCA’s decision, the district court concluded “that the [CCA]\n\nincorrectly considered it necessary for [Hobdy] to show that the different result was\n\nrequired to be an acquittal.” Aplt. App., Vol. 1 at 198 (quoting and citing the CCA’s\n\nstatement that: “Defendant did not establish that there was a reasonable probability\n\nthat such testimony would have been the ‘ounce that makes the pound’ that would\n\nhave led the jury to acquit instead of to convict”). The district court stated that\n\n“Strickland does not require a defendant to establish a reasonable probability that the\n\njury would have acquitted, but rather that the result of the proceeding would have\n\nbeen different,” and it noted that “[t]here [we]re other possible outcomes, including a\n\nhung jury, which would have been more favorable for Hobdy.” Id. And, apparently\n\nreviewing the issue de novo, the district court concluded that, had Hobdy’s trial\n\ncounsel presented expert testimony from a psychopharmacologist, “[t]here would in\n\n 28\n\fall probability have been a mistrial based on a hung jury–that is at least one juror\n\nhaving a reasonable doubt as to the credibility of the testimony of [victim] Jerry\n\nWilliams.” Id. at 198–99.\n\n In explaining the reasons for its conclusion, the district court briefly noted that\n\n“[t]here was no evidence to corroborate [Williams’] story” and “[t]he jury obviously\n\nhad great difficulty in making that determination as revealed in the notes to the\n\njudge.” Id. at 199. The district court then focused on the jury’s deliberations and the\n\nnotes sent by the jury to the state trial court and concluded: “This haphazard handling\n\nof jury questions, failure to inform counsel of a jury communication, and failure to\n\nmake a proper record of exchanges between the judge and jury is structural error\n\nwhich requires vacation of the conviction.”5 Id. at 200. Lastly, the district court\n\nstated: “For the foregoing reasons, the Court concludes that . . . Hobdy received\n\n\n\n 5\n This statement was apparently intended by the district court to address Claim\nTwo of Hobdy’s federal habeas application, since that claim concerned the state trial\ncourt’s handling of the “attacking each other” jury note. But that was not clear from\nthe face of the district court’s decision because the district court made no express\nreference to Claim Two, and it ultimately emphasized that it was granting federal\nhabeas relief in favor of Hobdy because he “received ineffective assistance of\ncounsel, in violation of the Sixth Amendment.” Aplt. App., Vol. 1 at 200–01. This\nis presumably what led to respondents seeking clarification of the district court’s\norder. The district court subsequently stated, in addressing respondents’ motion for\nclarification, that it was granting federal habeas relief on two grounds: Hobdy’s\nineffective assistance of counsel claim for failing to present testimony from a\npsychopharmacologist, and what the district court stated was its conclusion that\nHobdy “was denied the assistance of trial counsel in responding to the jury’s\nquestions in violation of the Sixth Amendment as alleged in Claim Two.” Id. at 228.\nConsequently, for purposes of this opinion, we treat the district court’s references to\nthe “attacking each other” jury note, and its structural error conclusion, as related to\nClaim Two of Hobdy’s federal habeas application.\n 29\n\fineffective assistance of counsel, in violation of the Sixth Amendment, and is\n\naccordingly ‘in custody in violation of the Constitution of the United States.’” Id.\n\nat 200–01 (quoting 28 U.S.C. § 2254(a)).\n\n e) The flaws in the district court’s analysis\n\n We conclude that the district court’s analysis was erroneous in at least two\n\nrespects. To begin with, the district court erred in concluding that § 2254(e)(1)\n\nrequired it “to accept” the state district court’s “final determination” regarding the\n\nfirst prong of the Strickland test. Aplt. App., Vol. 1 at 198. Section 2254(e)(1)\n\nprovides only that “a determination of a factual issue made by a State court shall be\n\npresumed to be correct” and that “[t]he applicant shall have the burden of rebutting\n\nthe presumption of correctness by clear and convincing evidence.” 28 U.S.C.\n\n§ 2254(e)(1). A district court’s decision regarding the first prong of the Strickland\n\ntest, such as the one pointed to by the district court in this case, is not a factual\n\nfinding (although it typically involves underlying factual findings), but rather a legal\n\ndetermination that is subject to review under § 2254(d) rather than § 2254(e)(1). See\n\nStrickland, 466 U.S. at 698 (“[A] state court conclusion that counsel rendered\n\nineffective assistance is not a finding of fact binding on the federal court to the extent\n\nstated by 28 U.S.C. § 2254(d).”).\n\n Second, even assuming that Hobdy did satisfy the first prong of the Strickland\n\ntest, the district court erred in concluding that the CCA unreasonably applied the\n\nsecond prong of the Strickland test when the CCA focused on the possibility or\n\nprobability of acquittal, rather than the possibility of a hung jury and a resulting\n\n 30\n\fmistrial. 6 Nothing in Strickland suggests that the prejudice standard can be satisfied\n\nby something less than an acquittal. To the contrary, the Court in Strickland stated\n\n“[i]t is not enough for the defendant to show that the errors had some conceivable\n\neffect on the outcome of the proceeding.” 466 U.S. at 693. Instead, the Court held,\n\n“[w]hen a defendant challenges a conviction, the question is whether there is a\n\nreasonable probability that, absent the errors, the factfinder would have had a\n\nreasonable doubt respecting guilt.” Id. at 695. Thus, the CCA’s decision, which\n\nfocused on the probability of acquittal, was neither contrary to nor an unreasonable\n\napplication of Strickland. See Frost, 749 F.3d at 1226 n.9 (noting, in dicta, that it\n\nwas not unreasonable for state appellate court applying the Strickland standard to\n\nfocus on the probability of acquittal, rather than simply a “different result”).\n\n f) The CCA’s decision was reasonable\n\n Setting aside the district court’s analysis, we conclude that the CCA’s analysis\n\nand resolution of Hobdy’s ineffective assistance of counsel claim was neither\n\ncontrary to, nor an unreasonable application of, Strickland and its prejudice prong.\n\nSee 28 U.S.C. § 2254(d). To begin with, the CCA correctly discussed the controlling\n\nlegal principles outlined in Strickland, including the requirements of the prejudice\n\n\n 6\n Notably, Hobdy never argued the theory that was relied on by the district\ncourt. In his brief to the CCA, Hobdy argued that “if [his] trial counsel had used a\nmedical expert . . . , a reasonable probability exist[ed] that the jury would have found\n[him] not guilty.” Aplt. App., Vol. 2 at 218. Nowhere did Hobdy argue the\npossibility of a hung jury and resulting mistrial. Likewise, in his application for\nfederal habeas relief, Hobdy did not argue that the CCA erred in failing to consider\nthe possibility of a hung jury and mistrial.\n\n 31\n\fprong. Aplt. App., Vol. 2 at 228–29. The CCA then carefully examined the\n\ntestimony that was elicited at trial from the State’s various witnesses regarding the\n\nvictim’s drug regimen and its likely effects on his ability to perceive, recall and\n\nrelate. The CCA in turn examined the expert testimony presented by Hobdy at the\n\nRule 35(c) evidentiary hearing regarding that same topic. The CCA compared the\n\ntrial testimony to the expert testimony presented at the Rule 35(c) evidentiary hearing\n\nand concluded there was not a reasonable probability that the outcome of the trial\n\nwould have been different had Hobdy’s trial counsel presented expert testimony like\n\nthat presented by Hobdy at the Rule 35(c) evidentiary hearing. The CCA stated that\n\nit “reach[ed] this conclusion because [Hobdy’s trial counsel], through cross-\n\nexamination, submitted to the jury a great deal of the information about which the\n\npsychopharmacologist testified at the [Rule 35(c)] hearing.” Id. at 234. The CCA\n\nnoted that “[t]he evidence that was presented at trial,” including that elicited by\n\nHobdy’s trial counsel via cross-examination, “was sufficient to cause the jury to\n\nquestion the victim’s credibility,” and that “although [the jury] ‘struggl[ed]’ to\n\n‘agree[]’ about the victim’s credibility, it obviously overcame that struggle and\n\nreached an agreement.” Id. at 238 (emphasis in original).\n\n Nothing about this analysis was contrary to or an unreasonable application of\n\nclearly established Supreme Court precedent. In terms of the “contrary to” prong of\n\n§ 2254(d), the Supreme Court has never addressed a case involving materially\n\nindistinguishable facts, and thus the CCA did not decide Hobdy’s case differently\n\nthan the Supreme Court. Williams, 529 U.S. at 412–13. Nor did the CCA arrive at a\n\n 32\n\fconclusion opposite to that reached by the Supreme Court on a question of law. Id.\n\nIn terms of the “unreasonable application” prong of § 2254(d), the CCA did not\n\nunreasonably apply the principles outlined in Strickland to Hobdy’s case. Id. at 415–\n\n16. Rather, the CCA’s consideration and rejection of Hobdy’s ineffective assistance\n\nclaim appears to have been entirely reasonable and thus does not provide Hobdy an\n\navenue for federal habeas relief under § 2254(d).\n\n For these reasons, we reverse the district court’s order granting federal habeas\n\nrelief on the basis of Hobdy’s claim that his trial counsel was ineffective for failing\n\nto consult with and offer evidence from an expert in psychopharmacology.\n\n Denial of the right to counsel, presence, and a fair trial\n\n In their second issue on appeal, respondents argue that the district court also\n\nerred in granting federal habeas relief on Claim Two of Hobdy’s federal habeas\n\napplication. Claim Two alleged that the state trial court denied Hobdy “his right to\n\ncounsel, to be present, and to a fair trial by [its] failure to disclose the ‘attacking each\n\nother’ ‘still . . . deadlocked’ note from the jury.” Aplt. App., Vol. 1 at 31. The\n\ndistrict court, in its initial memorandum opinion and order, concluded that the\n\n“haphazard handling of jury questions, failure to inform counsel of a jury\n\ncommunication, and failure to make a proper record of exchanges between the judge\n\nand jury [wa]s structural error which require[d] vacation of [Hobdy’s] conviction.”\n\nId. at 200. Subsequently, in its January 5, 2018 order addressing respondents’ post-\n\njudgment motions, the district court “ORDERED” that Hobdy “was denied the\n\n\n\n 33\n\fassistance of trial counsel in responding to the jury’s questions in violation of the\n\nSixth Amendment as alleged in Claim Two.” Id. at 228.\n\n a) Claim Two is procedurally barred\n\n Respondents argue that Claim Two of Hobdy’s federal habeas application—as\n\nactually framed in the application—is procedurally barred due to Hobdy’s failure to\n\nfairly present the claim to the CCA “in any of his three appeals in that court.” Aplt.\n\nBr. at 43. According to respondents, “[t]he first and only time [Hobdy] presented the\n\nclaim that his right to presence was violated by the trial court’s alleged failure to\n\ndisclose the ‘attacking each other’ jury note was in a post-hearing brief on the\n\nremand from his postconviction appeal.” Id. at 44. Respondents assert that the state\n\ndistrict court “did not address this new claim, and [Hobdy] did not present it to the\n\nCCA in the remand appeal.” Id. at 44–45. Respondents also argue that Hobdy “may\n\nnot now present the claim as an independent constitutional ground for relief because\n\nit would be barred as untimely under Colo. Rev. Stat. § 16-5-402 (2017) and as an\n\nabuse of process under Colo. R. Crim. P. 35(c)(3)(VII).” Id. at 46. “Both of these\n\nrules,” respondents argue, “are independent of federal law and adequate to sustain a\n\nprocedural default.” Id.\n\n We agree. In his original Rule 35(c) motion, Hobdy made no mention of the\n\n“attacking each other” jury note and raised no claims related to that note. In his\n\namended Rule 35(c) motion, Hobdy argued that his appellate counsel was ineffective\n\nfor failing to argue to the CCA that (a) “there [wa]s no transcript establishing that the\n\ntrial court ever acknowledged the jury’s [‘attacking each other’] note,” (b) the trial\n\n 34\n\fcourt never made “Hobdy and his [trial] counsel . . . aware of” this note, or (c) “it\n\n[wa]s structural error for [the] trial court to fail to make an [sic] preserve a record’\n\nregarding this note. 7 Aplt. App., Vol. 2 at 92–93. But he did not otherwise assert\n\nany of the claims that he now alleges in Claim Two of his federal habeas application,\n\ni.e., that the state trial court denied him “his right to counsel, to be present, and to a\n\nfair trial by [its] failure to disclose the ‘attacking each other’ ‘still . . . deadlocked’\n\nnote from the jury.” Aplt. App., Vol. 1 at 31. Thus, the allegations asserted in Claim\n\nTwo of Hobdy’s federal habeas application were never addressed by the state district\n\ncourt or the CCA and are unexhausted. See generally Kimmelman v. Morrison, 477\n\nU.S. 365, 374 n.1 (1986) (holding that Sixth Amendment claim was distinct from the\n\nunderlying Fourth Amendment claim).\n\n Further, the allegations in Claims Two are subject to an anticipatory\n\nprocedural bar. “‘Anticipatory procedural bar’ occurs when the federal courts apply\n\nprocedural bar to an unexhausted claim that would be procedurally barred under state\n\n\n 7\n That claim of ineffective assistance of direct appeal counsel was rejected by\nthe state district court as untimely. The state district court found that “[t]he\n‘attacking each other’ note appeared in the file and the record before the [CCA]” on\ndirect appeal. Aplt. App., Vol. 2 at 170. “Therefore,” the court concluded, “a failure\nto explicitly raise this on appeal, necessitating the application of the justifiable\nexcuse or excusable neglect standard in allowing the untimely supplement which\nraise[d] th[e] argument, [wa]s not persuasive” and the court “lack[ed] the province to\naddress the matter . . . under Crim. P. 35(c)(3)(VI).” Id. at 171. Hobdy did not\nappeal this ruling to the CCA. Indeed, the CCA subsequently noted that Hobdy\nargued “justifiable excuse or excusable neglect” in the remand proceedings, but\n“d[id] not reassert those grounds” in his appeal from the remand proceedings, and\nthus “ha[d] abandoned any argument concerning them.” Id. at 241. Consequently, at\nno point did the CCA address any issues related to or arising out of the “attacking\neach other” jury note.\n 35\n\flaw if the petitioner returned to state court to exhaust it.” Moore v. Schoeman, 288\n\nF.3d 1231, 1233 n.3 (10th Cir. 2002). If Hobdy were to attempt to now assert the\n\nallegations in the Colorado state courts in a Rule 35(c) motion, they would be\n\ndeemed time-barred. See Colo. Rev. Stat. § 16-5-402(1) (requiring petitions for post-\n\nconviction relief to be filed within three years for all non-class 1 felonies; class 1\n\nfelonies are those punishable by life imprisonment or the death penalty). Thus, the\n\nclaims are procedurally barred for purposes of federal habeas review. Moore, 288\n\nF.3d at 1233 n.3.\n\n Although it is not entirely clear from the record, it appears that the district\n\ncourt—obviously troubled by the state trial court’s apparent failure to notify the\n\nparties about the jury’s “attacking each other” note—sua sponte raised the issue of\n\nstructural error. Doing so, however, was clearly inconsistent with the dictates of\n\n§ 2254(d), which places strict limitations on a state prisoner’s ability to obtain federal\n\nhabeas relief. See Ellis, 872 F.3d at 1091 (emphasizing that “a federal court may\n\ngrant habeas relief only with respect to federal claims that state prisoners have\n\nappropriately exhausted by adequately presenting the substance of the claims to the\n\nappropriate state court for review”). Because Hobdy never raised any such structural\n\nerror claim in his federal habeas application, and because the CCA rejected Hobdy’s\n\nclaim of structural error (which, as noted, was actually couched as an ineffective\n\nassistance of appellate counsel claim) as procedurally barred, the purported structural\n\nerror found by the district court cannot operate as a basis for granting federal habeas\n\nrelief.\n\n 36\n\f Thus, in sum, Claim Two of Hobdy’s federal habeas application is\n\nprocedurally barred and cannot serve as the basis for the grant of federal habeas\n\nrelief.\n\n Hobdy’s request for relief on “contingent claims”\n\n Hobdy, in his appellate response brief, argues that even if we disagree with the\n\ndistrict court’s resolution of Claims One and Two of his federal habeas application,\n\nhe is nevertheless entitled to federal habeas relief on the basis of Claims Three\n\n(ineffective assistance of appellate counsel) and Four (cumulative error). Aple. Br.\n\nat 19, 47–58. We are not, however, persuaded that Hobdy is entitled to affirmance of\n\nthe district court’s judgment—federal habeas relief in the form of a new trial—on the\n\nbasis of either of those claims.8 See generally Jennings v. Stephens, 574 U.S. –, 135\n\nS. Ct. 793, 802 (2015) (recognizing that a habeas petitioner may, in response to the\n\nappeal of a decision granting him relief, and without obtaining a certificate of\n\nappealability, urge alternative grounds for affirmance of the district court’s\n\njudgment).\n\n In Claim Three, Hobdy asserts that his appellate counsel “failed to adequately\n\nreview the record on appeal and mishandled the appellate issues related to the jury’s\n\ndeadlock notes.” Aple. Br. at 19. Hobdy concedes, as he must, that the CCA denied\n\nthat same claim “on procedural default grounds, finding (1) the amended motion was\n\n\n 8\n The district court denied relief on Claims Three and Four and Hobdy did not\nobtain a COA or file a cross-appeal regarding those claims. Under Jennings,\nhowever, it was unnecessary for him to do so in order to urge those claims as an\nalternative basis for affirmance of the district court’s judgment.\n 37\n\funtimely under [Colo. Rev. Stat.] § 16-5-402 . . . and (2) the ‘justifiable excuse or\n\nexcusable neglect’ exception to this statutory limitations period did not apply.” Id.\n\nat 48. In particular, the CCA rejected Hobdy’s argument that the attorney who\n\nprepared his amended Rule 35(c) motion “was ineffective because she did not timely\n\nraise the issue of” ineffective assistance of appellate counsel. Aplt. App., Vol. 2 at\n\n240–41.\n\n Hobdy argues, however, that the CCA’s “ruling unreasonably ignored the fact\n\nthat” the attorney who prepared the amended Rule 35(c) motion “was never counsel\n\nof record” and instead “was working under [the] supervision” of the attorney who\n\n“was counsel of record.” Aple. Br. at 51. Hobdy further argues that “[c]ounsel of\n\nrecord” in the Rule 35(c) proceeding “was responsible for preserving Hobdy’s right\n\nto raise his claim of [ineffective assistance of appellate counsel] by adhering to any\n\napplicable statute of limitations.” Id.\n\n We reject Hobdy’s arguments. The CCA emphasized in its decision that\n\nHobdy’s “written argument[s] after the remand hearing . . . focused solely on the . . .\n\nattorney” who prepared the amended Rule 35(c) motion, and not on his counsel of\n\nrecord in the Rule 35(c) proceeding. Aplt. App., Vol. 2 at 244. The CCA “also\n\nnote[d] that” Hobdy’s counsel of record in the Rule 35(c) proceeding “did not testify\n\nat the remand hearing,” and that Hobdy “did not contend during the remand\n\nproceedings,” or in the appeal from the remand proceedings, that his counsel of\n\nrecord in the Rule 35(c) proceeding “was ineffective.” Id. Lastly, “[b]ecause a\n\nprisoner does not have a constitutional right to counsel in state postconviction\n\n 38\n\fproceedings, ineffective assistance in those proceedings does not qualify as cause to\n\nexcuse a procedural default.” Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). Thus,\n\nwe conclude that Claim Three—Hobdy’s ineffective assistance of appellate counsel\n\nclaim—was defaulted in state court on an independent and adequate state procedural\n\nground and, in turn, is procedurally barred for purposes of federal habeas review.\n\n In Claim Four, Hobdy asserts that his “right to due process of law was violated\n\nby the cumulative effect of error.” Aple. Br. at 57. We reject Claim Four, however,\n\nbecause “we have discerned through the lens of AEDPA only one” assumed error,\n\ni.e., trial counsel’s failure to retain and present testimony from an expert in\n\npsychopharmacology, and it is well-established that “there must be more than one\n\nerror to conduct cumulative-error analysis.” Ellis, 872 F.3d at 1090.\n\n III\n\n The judgment of the district court is REVERSED and the case REMANDED\n\nto the district court with directions to enter judgment in favor of respondents on\n\nHobdy’s application for federal habeas relief.\n\n\n\n\n 39", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368925/", "author_raw": "BRISCOE, Circuit Judge."}]}	BRISCOE	HOLMES	MCHUGH	1	{"McHUGH": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591672/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,098		Cuesta-Rodriguez v. Carpenter	2019-02-22	16-6315	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 22, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n CARLOS CUESTA-RODRIGUEZ,\n\n Petitioner - Appellant,\n\n v. No. 16-6315\n\n MIKE CARPENTER, Warden, Oklahoma\n State Penitentiary,\n\n Respondent - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the Western District of Oklahoma\n (D.C. No. 5:11-CV-01142-M)\n _________________________________\n\nMichael W. Lieberman, Assistant Federal Public Defender (Randy A. Bauman, Thomas\nD. Hird, Assistant Federal Public Defenders, with him on the briefs), Office of the\nFederal Public Defender, Oklahoma City, Oklahoma, for Petitioner-Appellant.\n\nCaroline E. J. Hunt, Assistant Attorney General (Mike Hunter, Attorney General of\nOklahoma, with her on the briefs), Office of the Attorney General, Oklahoma City,\nOklahoma, for Respondent-Appellee.\n\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n _________________________________\n\n In this habeas corpus case, Carlos Cuesta-Rodriguez challenges his Oklahoma\n\nconviction for first-degree murder and his accompanying sentence of death. The\n\ndistrict court denied relief and denied a certificate of appealability (COA). We\n\fgranted a COA, agreeing to hear a number of Cuesta-Rodriguez’s claims. Exercising\n\njurisdiction under 28 U.S.C. § 2253(a), we agree with the district court and conclude\n\nthat Cuesta-Rodriguez isn’t entitled to relief.\n\n BACKGROUND\n\nI. The Crime of Conviction\n\n The following facts come from the direct-appeal decision of the Oklahoma Court\n\nof Criminal Appeals (OCCA), Cuesta-Rodriguez v. State, 241 P.3d 214 (Okla. Crim.\n\nApp. 2010). We presume that the OCCA’s factual findings are correct. See 28 U.S.C.\n\n§ 2254(e)(1) (establishing that state-court determinations of fact “shall be presumed to be\n\ncorrect” unless rebutted by “clear and convincing evidence”).\n\n Olimpia Fisher—the victim—and her adult daughter, Katya Chacon, lived with\n\nCuesta-Rodriguez in a home Fisher and Cuesta-Rodriguez had purchased together. In the\n\nyear following the home purchase, Cuesta-Rodriguez and Fisher’s relationship was\n\nstrained. Fisher was working long hours as a moving-company packer, and Cuesta-\n\nRodriguez feared she was cheating on him. Whenever Fisher and Chacon would leave the\n\nhouse, Cuesta-Rodriguez would question them “about where they were going and what\n\nthey would be doing.” Cuesta-Rodriguez, 241 P.3d at 222. The relationship deteriorated\n\nto the point that both Cuesta-Rodriguez and Fisher wanted the other to move out.\n\n On May 20, 2003, Fisher went to the local police station “to make a complaint of\n\ndomestic abuse.” Id. The interviewing officer “observed bruising on her right upper arm\n\nand stomach.” Id. But when Fisher realized that the officer “was going to take\n\n\n\n 2\n\fphotographs of the bruising and that Cuesta-Rodriguez would be arrested, she ran out of\n\nthe station.” Id.\n\n On May 31, 2003, Cuesta-Rodriguez called Fisher on her cell phone. She\n\nanswered and replied that she was at work. But Cuesta-Rodriguez had gone by her place\n\nof work earlier and knew she wasn’t there. “Believing she was cheating on him, he went\n\nhome, drank some tequila, and went to bed.” Id.\n\n Around 10 p.m., Chacon came home to a dark house. She saw an empty bottle of\n\ntequila1 with a note beside it. The note, written on the back of an envelope, read, “fuck\n\n\n\n\n 1\n In his statement of facts, Cuesta-Rodriguez claims that he was “highly\nintoxicated.” Appellant’s Opening Br. at 4. The OCCA concluded that “[t]he\nevidence in this case showed that Cuesta-Rodriguez did consume some tequila\nseveral hours before the murder.” Cuesta-Rodriguez, 241 P.3d at 223. The OCCA\nstated that though the “evidence may certainly support an inference that Cuesta-\nRodriguez was intoxicated,” it didn’t constitute a prima facie showing that Cuesta-\nRodriguez was incapable of forming criminal intent. Id. at 224 (citing Charm v.\nState, 924 P.2d 754, 761 (Okla. Crim. App. 1996)).\n\n Various pieces of evidence supported the OCCA’s conclusion, including\n(1) that Cuesta-Rodriguez “said that he consumed two or three drinks of tequila, but\ndenied that he consumed enough to make him drunk”; (2) that Chacon described him\nas “‘stupid drunk’ . . . but also testified that he was steady on his feet and talking\nclearly”; (3) that an interviewing detective concluded that four hours after the\nmurder, Cuesta-Rodriguez “smelled of alcohol” but “appeared only slightly\nintoxicated”; and (4) that “Cuesta-Rodriguez remembered events well enough to give\npolice a detailed account of the shooting and the circumstances surrounding it.” Id. at\n223–24.\n\n All that being said, the OCCA didn’t reach a definitive factual finding on\nCuesta-Rodriguez’s level of intoxication. But Cuesta-Rodriguez’s level of\nintoxication isn’t dispositive of any issue before us, so we don’t address it any further\nin this opinion.\n\n\n 3\n\fyou bitches and puntas, goodbye.” Trial Tr. vol. II at 381:2. After realizing Cuesta-\n\nRodriguez was home, Chacon attempted to contact her mother. Unable to reach her\n\nby phone, Chacon left the house and joined Fisher as she was getting off work. The\n\ntwo ate a late dinner at McDonald’s and went home. Though they initially planned to\n\npack and leave that night, they decided to stay overnight, Chacon sleeping in her own\n\nbedroom and Fisher sleeping in a third bedroom.\n\n Around 4:30 a.m., Chacon awoke to the sounds of Fisher and Cuesta-Rodriguez\n\narguing. She went to the bedroom where the two were fighting and persuaded Fisher to\n\ncome back to her (Chacon’s) bedroom “in the hope that Cuesta-Rodriguez would leave\n\nthem alone.” Cuesta-Rodriguez, 241 P.3d at 222. But “Cuesta-Rodriguez followed the\n\nwomen into [Chacon’s] bedroom while continuing to argue loudly with Fisher.” Id.\n\n Fisher picked up a phone, but Cuesta-Rodriguez grabbed it and tossed it from her\n\nreach. At the same time, he pulled out a pistol “and blasted Fisher in the right eye.”2 Id.\n\nChacon “retrieved a baseball bat from under the bed and tried to hit Cuesta-Rodriguez in\n\nthe hand.” Id. He “grabbed the bat as [she] swung it and threw it to the floor.” Id. Chacon\n\nran from the building and called 911 from a neighbor’s house.\n\n After being shot, Fisher was still conscious. Cuesta-Rodriguez “took her to his\n\nbedroom where, despite having an eye blown out, Fisher continued to fight and struggle.”\n\nId. at 223. Around 4:41 a.m., the first police officers arrived on the scene (within two\n\n\n\n 2\n “Chacon testified that the gunshot hit the right side of Fisher’s face.” Cuesta-\nRodriguez, 241 P.3d at 222 n.1.\n\n 4\n\fminutes of being dispatched by 911). Officers approached the house and heard Fisher\n\n“screaming and banging on a bedroom window as if she was trying to escape.” Id.\n\nThe house’s windows and doors “were covered with burglar bars that not only prevented\n\nher escape, but also prevented entry by police.” Id. The officers attempted to enter by\n\n“kicking in the front door,” but that failed. Id. While attempting to enter the building, the\n\nofficers heard a gunshot—and then Fisher’s screams stopped. An autopsy later revealed a\n\nsecond, fatal gunshot wound to Fisher’s left eye.\n\n Certain that Fisher was dead and “that Cuesta-Rodriguez was armed, police\n\nsummoned their tactical team.” Id. Meanwhile, a police hostage negotiator attempted to\n\nconvince Cuesta-Rodriguez to come outside.\n\n Using a specialized tool called a “jam-ram,” the tactical team forced their way\n\nthrough the front-door burglar bars. Id. Officers arrested Cuesta-Rodriguez and took him\n\nto the police station. He gave statements to detectives that day and the following day—\n\nand in both interviews admitted to shooting Fisher (though he claimed the first shot was\n\naccidental). Photographs of Fisher’s face showed gunshot wounds to both eyes.3\n\n\n\n\n 3\n At trial, the jury heard evidence that the location of the gunshot wounds had\nbeen deliberate:\n\n According to the testimony of Fisher’s former boyfriend, when Fisher\n terminated their relationship in favor of Cuesta-Rodriguez, Fisher said\n that she had “put her eyes on somebody else.” The ex-boyfriend stated he\n was familiar with Fisher’s use of this unusual phrase because she\n previously told him that if she put her eyes on somebody else, that meant\n she was “interested in him.” (Continued.)\n\n\n 5\n\fII. The Trial4\n\n The state of Oklahoma put Cuesta-Rodriguez on trial for first-degree murder,\n\nand prosecutors sought the death penalty.\n\n A. The Guilt Phase\n\n During the trial, the court admitted testimony from Dr. Jeffrey Gofton based\n\non the report of an autopsy performed by another doctor (Dr. Fred Jordan) who\n\nwasn’t present and wouldn’t be subject to cross-examination.5 “Dr. Gofton testified\n\nregarding the examination of the body conducted by Dr. Jordan and gave his own\n\nopinions on Fisher’s injuries and cause of death based on Dr. Jordan’s observations\n\nas recorded in his autopsy report.” Cuesta-Rodriguez, 241 P.3d at 226–27. “Dr.\n\nGofton explained to the jury the nature of [Fisher’s] injuries . . . and recited other\n\nobservations mentioned in Dr. Jordan’s report.” Id. at 229. “He concluded that a\n\nfirearm injury to the head was the cause of death and opined that among several\n\npossibilities, the method of death was most likely choking on blood that had entered\n\nthe airway from bone fracturing in the nasal area.” Id. He explained that “Fisher\n\nwould have lost consciousness in a matter of seconds to minutes and could have\n\ntaken as long as eight minutes to aspirate on the blood.” Id. He also pronounced that\n\nthe second gunshot “was the likely cause of death.” Id.\n\n\n\nCuesta-Rodriguez, 241 P.3d at 223 n.3 (citations omitted).\n 4\n We lay out here only the occurrences now relevant on appeal.\n 5\n Dr. Jordan had retired by the time of the trial.\n\n 6\n\f At the end of the trial, the jury found Cuesta-Rodriguez guilty of murder in the\n\nfirst degree.\n\n B. The Penalty Phase\n\n The defense presented evidence of several mitigating circumstances, detailing,\n\namong other things, Cuesta-Rodriguez’s troubled childhood, his history of alcohol\n\nand substance abuse, as well as his experiences emigrating from Cuba.6 His counsel\n\nintroduced testimony about Cuesta-Rodriguez’s good behavior in jail. And his\n\nemployer and co-workers testified regarding his work ethic and abilities. Family\n\nmembers (both in taped interviews and in person) discussed Cuesta-Rodriguez’s\n\nbackground and good qualities. And they expressed their love for him and asked the\n\njury to impose a non-capital sentence.\n\n The jury heard from a psychologist (Dr. James Choca) who testified\n\n“ostensibly” in mitigation.7 Appellant’s Opening Br. at 7. Dr. Choca told the jury\n\nabout a childhood injury from when Cuesta-Rodriguez “hit his head against [a]\n\nwindshield and fractured his skull.” Trial Tr. vol. V at 982:19–20. After\n\n\n\n\n 6\n Cuesta-Rodriguez’s defense counsel discovered and presented this mitigation\nevidence after substantial efforts to obtain medical records and statements or\ntestimony from family. Those efforts included a trip to Cuba, Cuesta-Rodriguez’s\nhome country, which required the application for and receipt of court funds. The trip\nalso required navigating the complex landscape of U.S.–Cuba relations. Counsel also\nobtained mitigation witnesses from Oklahoma and Florida.\n 7\n Cuesta-Rodriguez now challenges the efficacy of that testimony.\n\n\n 7\n\fhospitalization “a metal plate had to be put in” his skull.8 Id. at 982:21. The doctor\n\nalso told the jury about an injury that took place years later in the United States:\n\nwhile working at a lumber yard and driving a tractor, Cuesta-Rodriguez “fell off the\n\ntractor and was dragged by the tractor for a few yards until someone was able to stop\n\nit.”9 Id. at 983:18–20. As a result of that incident, Dr. Choca testified, Cuesta-\n\nRodriguez suffered from back pain and took pain medication. The doctor discussed\n\n\n\n 8\n Cuesta-Rodriguez’s brief describes the incident somewhat differently. But\nnothing in this appeal turns on the distinctions. Cuesta-Rodriguez described the\nincident as follows:\n\n When Mr. Cuesta was eight years old, he was riding on a city bus\n with two of his cousins. Hurricane Flora, one of the deadliest hurricanes\n in Cuba’s history, was moving over the island at that time. The storm . . .\n caus[ed] the driver to lose control of the bus, sending it careening into a\n pole. The bus driver was killed. Mr. Cuesta was sitting in the front of the\n bus near the driver and was thrown through the windshield. The impact\n fractured his skull and caused him to lose consciousness. He . . . had\n surgery to remove pieces of glass from his brain. A metal plate was\n inserted to repair his skull. He was in a coma for some time after the\n surgery. . . . Mr. Cuesta received psychiatric treatment as a result of the\n accident.\n\nAppellant’s Opening Br. at 15–16 (citations omitted).\n 9\n Cuesta-Rodriguez’s brief describes the incident as follows:\n\n In August of 1995, while Mr. Cuesta was employed at Forest\n Lumber Company, he experienced another serious head injury. As Mr.\n Cuesta was driving a tractor around the lumber yard, a pin holding the\n seat broke and he fell backwards and hit his neck on a bar, forcing his\n head forward. He briefly lost consciousness and was dragged around by\n the tractor until another employee was able to stop it.\n\nAppellant’s Opening Br. at 16–17.\n\n\n 8\n\fCuesta-Rodriguez’s history of depression and substance abuse. And he discussed\n\nCuesta-Rodriguez’s “social history” “to get some sense for what he had been\n\nthrough.” Id. at 985:3, 6–7, 985:9–991:24 (discussing Cuesta-Rodriguez’s “difficult\n\nlife”). Dr. Choca determined that Cuesta-Rodriguez had borderline-personality\n\ndisorder and discussed the effect of that condition.\n\n Allegedly due to the failure of trial counsel, the jurors didn’t hear any\n\nadditional mitigation evidence regarding Cuesta-Rodriguez’s organic brain damage\n\nfrom the childhood incident. Nor did they hear about his post-traumatic stress\n\ndisorder.10\n\n At the penalty phase of trial, the state argued that Cuesta-Rodriguez deserved\n\nthe death penalty based on two aggravating circumstances: (1) the heinousness,\n\natrociousness, or cruelty of the murder and (2) the continuing risk Cuesta-Rodriguez\n\nposed to society. We now outline the prosecution’s comments that are at issue on\n\nappeal. These fall into two categories: (1) comments regarding the jury instruction on\n\nmitigating circumstances and (2) comments regarding the mitigation evidence that\n\nthe defense presented.\n\n\n\n\n 10\n Cuesta-Rodriguez now challenges a number of Dr. Choca’s findings,\nincluding that Cuesta-Rodriguez has an IQ “in the bright normal range” and that\nCuesta-Rodriguez has recovered well from his head injuries. Trial Tr. vol. V at\n994:14.\n\n 9\n\f 1. Comments Regarding Jury Instruction\n\n During the penalty phase, the court gave the jury an instruction (instruction\n\nnine) that defined mitigating circumstances and explained the jury’s role in\n\nconsidering them. Instruction nine states:\n\n Mitigating circumstances are those which, in fairness, sympathy, and mercy,\n may extenuate or reduce the degree of moral culpability or blame. The\n determination of what circumstances are mitigating is for you to resolve\n under the facts and circumstances of this case.\n\n While all twelve jurors must unanimously agree that the State has established\n beyond a reasonable doubt the existence of at least one aggravating\n circumstance prior to consideration of the death penalty, unanimous\n agreement of jurors concerning mitigating circumstances is not required. In\n addition, mitigating circumstances do not have to be proved beyond a\n reasonable doubt in order for you to consider them.\n\nOriginal R. vol. VII at 1284.\n\n Next, the court gave instruction ten, which states, “Evidence has been introduced\n\nas to the following mitigating circumstances,” and then lists sixteen facts about Cuesta-\n\nRodriguez. Id. at 1285. The court told the jury that “[e]vidence ha[d] been introduced\n\nas to the following mitigating circumstances”: (1) Cuesta-Rodriguez’s emigration\n\n“from the poverty-stricken Communist country of Cuba”; (2) his journey to the\n\nUnited States during the Mariel Boat Lift of 1980; (3) his time in federal detention\n\nafter his heroin-possession conviction; (4) the revolt of “some Cubans in the prison\n\nwho feared repatriation” during Cuesta-Rodriguez’s time in federal custody,\n\ncompared to Cuesta-Rodriguez’s “volunteer[ing] for and welcome[ing]” of\n\nrepatriation “so that he would see his family again”; (5) Cuesta-Rodriguez’s\n\n“productive[]” use of his time in federal detention “to learn to speak and read\n\n 10\n\fEnglish”; (6) his “long, stable work history” and status as a “valued employee” who\n\nremained a “cherished and trusted friend” to his boss; (7) his volunteer work for\n\nseven years helping make “the homes of elderly and needy persons . . . safe and\n\nhabitable”; (8) his status as a likely “asset to a prison community where productive\n\ninmate workers are needed” because of his “past employment experiences and\n\nwillingness to work”; (9) his family in Cuba, with whom “he has maintained regular\n\ncontact with throughout the years,” and who “asked [the jury] to spare” his life;\n\n(10) Cuesta-Rodriguez’s love for his son, Carlos (Kery) Cuesta Gonzalez, who was\n\ninspired by his father to become a writer; (11) Cuesta-Rodriguez’s “serious,\n\ndebilitating depression,” which was “made worse by self medication with alcohol and\n\nother substances”; (12) his rapidly deteriorating mental condition that, “combined\n\nwith alcohol and other substances[,] culminated in [his] actions on May 31, 2003\n\nwhich caused the death of Olimpia Fisher”; (13) Cuesta-Rodriguez’s since-improved\n\nmental condition, which was “effectively stabilized by medications” that “ease the\n\nsymptoms of depression and delusions”; (14) Cuesta-Rodriguez’s participation in and\n\nsuccessful completion of the Oklahoma Department of Mental Health’s Wellness\n\nRecovery Action Program; (15) his good behavior in the county jail for four years\n\nawaiting trial; and (16) his remorse for causing Fisher’s death. Id. at 1285–88.\n\n And, in a separate instruction—instruction sixteen—the jury was told: “All the\n\nprevious instructions given you in the first part of this trial apply where appropriate,\n\nexcept that in this part of the trial, you may consider sympathy or sentiment for the\n\n\n\n 11\n\fdefendant in deciding whether to impose the death penalty.” Id. at 1295 (emphasis\n\nadded).\n\n The prosecution, in its closing argument, referenced instruction nine\n\ndiscussing mitigating circumstances, arguing that the mitigation evidence presented\n\nto the jury didn’t reduce Cuesta-Rodriguez’s moral culpability for the crime. The\n\nprosecutor asked, “[H]ow does [the defense’s evidence (referring to “the evidence\n\n[the jury] heard the last two or three days”)] mitigate what this defendant did on the\n\ndate in question?” Trial Tr. vol. VII at 1281:21–22, 1282:1–2.\n\n And then the prosecutor referred the jury to “the instructions from His Honor\n\nup there,” id. at 1282:3–4, stating that mitigating circumstances are circumstances\n\n“which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of\n\nmoral culpability or blame,” id. at 1282:6–8. The prosecutor went on to ask what\n\nevidence had been presented “that might reduce the moral culpability or blame of”\n\nCuesta-Rodriguez for shooting Fisher. Id. at 1282:17–18. The prosecutor concluded\n\nthat Cuesta-Rodriguez’s emigration from Cuba didn’t “reduce the moral culpability\n\nof this murder.” Id. at 1283:14–15.\n\n And the prosecutor continued on with this theme. See id. at 1283:16–17 (“How\n\ndoes it mitigate it? I pose the question to you . . . .”); id. at 1284:12–14 (“[T]he State\n\nof Oklahoma submits that [the family testimony in mitigation] doesn’t do anything to\n\nreduce the moral culpability of what he did to Olimpia Fisher.”). Discussing the\n\nfamily testimony, the prosecutor had this to say: “Do they love him? Sure, they do,\n\n\n\n 12\n\feven though they haven’t seen him in a long time. It’s not surprising. It’s not helpful\n\nto you either.” Id. at 1284:14–17.\n\n But the prosecutor interwove with those statements suggestions that the jury\n\ncould consider the mitigation evidence. The prosecutor told the jury: “And again, I’m\n\nnot telling you don’t listen to them; by all means, you consider what they have to\n\nsay.” Id. at 1284:9–11; see also id. at 1281:17–19 (“[Y]ou still say, all right, does that\n\noutweigh the mitigating evidence that we’ve heard.”); id. at 1283:20 (“I’m not going\n\nto disparage [the mitigation witnesses].”).\n\n After rejecting the import of the mitigation evidence, the prosecutor reminded\n\nthe jury of the victim-impact testimony. See id. at 1285:18–21 (“You are to go up\n\nthere and inquire into the moral culpability of what he did and, in doing so,\n\nremember the impact testimony that came from these young ladies [Fisher’s\n\ndaughters].”). The prosecutor concluded his argument by stating, “There is one\n\npunishment that doesn’t undermine the seriousness of [the murder], and that is the\n\npunishment of death.” Id. at 1286:20–22.\n\n The defense’s closing argument also touched on instruction nine. The defense\n\nemphasized to the jury that it had flexibility to consider mitigating circumstances,\n\nstating that mitigating circumstances “don’t have to be proven beyond a reasonable\n\ndoubt” and needn’t be agreed on unanimously. Id. at 1301:24–25. Defense counsel\n\ntold the jury, “Any level of proof that is enough for you is good enough.” Id. at\n\n1301:25–1302:1. And defense counsel stressed to the jurors that they “may consider\n\nsympathy or sentiment for the defendant . . . because the law says it’s right for you to\n\n 13\n\fconsider them; otherwise, the Court would not have allowed them to come before\n\nyou.” Id. at 1301:13–20. The defense further emphasized that the jury could rely on\n\ndifferent mitigating circumstances, including mitigating circumstances not on the list\n\nand not talked about during the trial, because “if it’s mitigating to you, it’s enough.”\n\nId. at 1302:5.\n\n The prosecution in rebuttal returned to the theme that the mitigation evidence\n\ndidn’t reduce Cuesta-Rodriguez’s culpability. After referencing instruction nine, the\n\nprosecutor said: “Counsel told you many times mitigating circumstances are those\n\nwhich, in fairness, sympathy, and mercy—and that’s true but there’s more—may\n\nextenuate or reduce the degree of moral culpability or blame. May extend or reduce\n\nthe degree of culpability or blame.” Id. at 1313:9–14. “So,” the prosecutor said, “now\n\nlet’s look at the mitigating evidence they offer.” Id. at 1313:15–16. Referencing\n\nCuesta-Rodriguez’s Cuban heritage, the prosecutor stated: “And you ask yourselves,\n\nlooking at the law, does that reduce his degree of culpability or blame? State submits\n\nno.” Id. at 1313:17–20. And, going through various pieces of the defense’s mitigating\n\nevidence, the prosecutor again and again reached the same conclusion. See id. at\n\n1314:12–14 (“Ask yourselves how does [the fact that he came to the United States in\n\nthe Mariel boat lift] reduce his degree of culpability or blame?”); id. at 1315:1–3\n\n(“[W]hat you have to ask yourselves under the law is do you find [the fact that he\n\nwelcomed repatriation] reduces his degree of moral culpability or blame for this\n\ncase?”); id. at 1315:6–11 (“[A]nd I won’t go through all these [mitigating\n\ncircumstances] . . . . And you ask yourselves how in the world does that reduce his\n\n 14\n\fdegree of moral culpability or blame for this case?”). But the prosecution did\n\nencourage the jury to consider all the evidence, stating: “[W]e’re not asking you to\n\nignore the evidence, but embrace it.” Id. at 1315:11–12.\n\n 2. Comments Regarding Mitigation Evidence\n\n During its closing argument, the prosecution stated that “the State of\n\nOklahoma does not want to denegrate [sic] any of the evidence you’ve heard the last\n\ntwo or three days. I will not denegrate [sic] it.” Id. at 1281:20–22; see also id. at\n\n1281:24–25 (referring to mitigation witnesses as “fine, upstanding people”). Later,\n\ndiscussing Cuesta-Rodriguez’s proffered mitigation evidence, the prosecutor stated:\n\n And as far as them tearfully pleading for his life there, I say to you on\n behalf of the State, ladies and gentlemen, shame on him for putting them\n in that position. Shame on him for making them act as a human shield\n between justice and himself.\n\nId. at 1284:18–22.\n\n After the prosecution closing, the defense gave its closing argument. In it,\n\ndefense counsel stated: “In fairness, sympathy, and mercy, refuse the death penalty\n\nbecause there’s a family 90 miles from our shores who are a world away who will be\n\nhurt. His mother Evi, his sister Arelie, and his brother Juaquin.” Id. at 1303:17–20. A\n\nfew lines later, closing out the argument, counsel stated asked the jury to “refuse the\n\ndeath penalty because there is a son,” id. at 1303:21–22, who told Cuesta-Rodriguez\n\nthat “I want to sit one day across from you. Refuse the death penalty because there is\n\na son who tells his father, I am your son, I have the right to know you. Don’t deny\n\n\n\n\n 15\n\fKery Rodriguez [his son] that opportunity. In fairness, sympathy, and mercy, refuse\n\nthe death penalty,” id. 1304:1–6.\n\n The prosecution started its rebuttal closing argument (presented by a different\n\nprosecutor) by noting that it planned to “rebut a couple of things [defense] Counsel\n\nsaid.” Id. at 1304:13–14. Soon after, the prosecutor, referring to defense counsel’s\n\nclosing argument, told the jury that “what you’ve heard for 20 minutes is the guilt\n\ntrip.” Id. at 1304:19–20. Defense counsel objected, and the judge asked the\n\nprosecutor to rephrase. The prosecutor then told the jury: “You know, when I say\n\nguilt trip, you don’t need to feel guilty about doing your job. He’s the one that\n\nbrought us together. It is his actions. And I want to talk about that because you can\n\nconsider sympathy absolutely.” Trial Tr. vol. VII at 1306: 5–9. Soon after, the\n\nprosecutor continued: “So, yeah, when they want to talk to you about mercy, which\n\nyou can consider, and I submit to you[,] you decide if you should feel guilty about\n\ndoing your job. You’ve got [intervening objection] So when they ask you about\n\nmercy, and I say, you don’t have to feel guilty if you’re sitting on this jury; you’re\n\ndoing your civic duty.” Id. at 1309:22–25, 1310:18–20. Later, the prosecutor stated:\n\n“As [my colleague] said, you know, shame on him. He puts those people in a terrible\n\nposition.” Id. at 1316:7–8. The prosecution rested after asking the jury to sentence\n\n\n\n\n 16\n\fCuesta-Rodriguez to death: “His actions brought us here. Sentence him accordingly.”\n\nId. at 1317:18–19.11\n\n That spelled the end of closing arguments, so the jury left to deliberate. During\n\ndeliberations, the jury asked for the legal definition of culpability. The court\n\nanswered, with both parties’ consent, that the definition is “blame or blameable.” Id.\n\nat 1318:23–24.\n\n In the end, the jury found the existence of two aggravating circumstances:\n\n(1) that the murder was especially heinous, atrocious, or cruel and (2) that Cuesta-\n\nRodriguez posed a continuing threat to society. And the jury recommended a death\n\nsentence. Later, the court formally sentenced Cuesta-Rodriguez to death.\n\nIII. The Appeals\n\n The OCCA affirmed Cuesta-Rodriguez’s conviction and sentence on direct\n\nappeal. Cuesta-Rodriguez, 241 P.3d at 247. In doing so, the OCCA found two\n\nerrors—a Confrontation Clause error and a prosecutorial-misconduct error—but\n\nfound both individually harmless. Id. at 230–31, 243–44. The OCCA concluded that\n\nthe two errors were also cumulatively harmless. Id. at 246.\n\n\n\n 11\n In his brief, Cuesta-Rodriguez discusses another prosecution comment\nunmentioned in this facts section. At the start of its closing argument, the prosecutor\ntold the jury: “I’m going to try and give us a little reality check here. They spent the\nlast three days hoping you’ll forget what happened to Olimpia Fisher.” Trial Tr. vol.\nVII at 1270:17–20. But Cuesta-Rodriguez concedes that this comment isn’t “part of\nthe certificate of appealability” and that he isn’t “seeking relief thereon.” Appellant’s\nOpening Br. at 56 n.30.\n\n\n 17\n\f Admitting Dr. Gofton’s testimony, the OCCA determined, was in fact error\n\nunder the Confrontation Clause because “Cuesta–Rodriguez was denied the\n\nopportunity to confront Dr. Jordan in order to test his competence and the accuracy\n\nof his findings.” Id. at 229. But the OCCA determined this error was harmless.12 Id. at\n\n231. The court concluded that yes, Dr. Gofton’s testimony was “potentially relevant\n\nto proving the heinous, atrocious, or cruel aggravator in the sentencing phase by\n\nshowing that Fisher consciously suffered before she died.” Id. at 230. Yet the OCCA\n\ndecided that “even if Dr. Gofton’s testimony is discounted in its entirety, there was\n\nstill more than sufficient evidence for the jury to conclude that Fisher consciously\n\nsuffered before her death.” Id. at 231. Specifically, the OCCA pointed to the\n\ntestimony of police officers and Chacon, as well as Cuesta-Rodriguez’s statements to\n\npolice that “showed that when Cuesta-Rodriguez fired the first blast from his pistol into\n\nFisher’s right eye, she was not rendered unconscious.” Id. Therefore the OCCA\n\nconcluded that even excluding Dr. Gofton’s testimony, “the jury could have reasonably\n\nconcluded that Fisher consciously experienced great physical and mental suffering.” Id.;\n\nsee also id. (“Consequently, even if Dr. Gofton’s testimony about how long Fisher may\n\nhave remained conscious after the second gunshot is eliminated from consideration, there\n\n\n\n\n 12\n The OCCA concluded that the Confrontation Clause error caused by\nadmitting Dr. Gofton’s testimony mattered at both the guilt phase and the penalty\nphase but found the error harmless at both phases. Cuesta-Rodriguez, 241 P.3d at\n230–31. We discuss only the OCCA’s penalty-phase conclusions because the guilt-\nphase discussion isn’t relevant to this appeal.\n\n 18\n\fwas enough remaining evidence to show conscious suffering in the interval between the\n\nfirst and second shots.”).\n\n Regarding his claims of prosecutorial misconduct, Cuesta-Rodriguez argued\n\nthat “the prosecutors made many statements designed to diminish, denigrate, or\n\ncompletely invalidate the mitigating evidence that was presented.” Id. at 243. The\n\nOCCA identified just one—“the prosecutor’s first ‘guilt trip comment’”—which, it\n\nconcluded, “pushe[d] beyond the limits of permissible argument because it was not a\n\ncomment on the evidence, but instead was an obvious attempt to denigrate Cuesta-\n\nRodriguez’s mitigation defense.” Id. at 244. The OCCA noted that the “prosecutor’s\n\nother two comments referring to ‘guilt trip’ or feeling guilty both c[a]me very close\n\nto crossing this line.” Id. But it recognized only the first comment as error. See id.\n\n Nonetheless, the OCCA determined that the comments weren’t “verdict\n\ndeterminative” and that “given the strength of the evidence supporting imposition of\n\nthe death penalty, they were harmless.” Id. The OCCA concluded that “Cuesta–\n\nRodriguez was not denied a fair or reliable sentencing proceeding.” Id.\n\n The OCCA later denied relief on Cuesta-Rodriguez’s two post-conviction\n\napplications. Cuesta-Rodriguez v. Oklahoma, No. PCD-2012-994 (Okla. Crim. App.\n\nFeb. 8, 2013); Cuesta-Rodriguez v. Oklahoma, No. PCD-2007-1191 (Okla. Crim.\n\nApp. Jan. 31, 2011).\n\n The federal district court then denied Cuesta-Rodriguez’s petition for habeas\n\nrelief. Cuesta-Rodriguez v. Royal, No. CIV-11-1142-M, 2016 WL 5485117, at 1\n\n(W.D. Okla. Sept. 29, 2016). The district court also denied him a COA. But we\n\n 19\n\fgranted a COA to consider (1) Cuesta-Rodriguez’s prosecutorial-misconduct claims;\n\n(2) his ineffective-assistance-of-counsel claims, including his procedural-default\n\narguments and the district court’s denial of his request for an evidentiary hearing; and\n\n(3) his cumulative-error claim. Those claims are now before us on appeal.\n\n DISCUSSION\n\n Cuesta-Rodriguez makes three main arguments on appeal: (1) that he isn’t\n\nprocedurally barred from asserting his ineffective-assistance-of-counsel claims\n\nregarding failure to introduce evidence of his organic brain damage and post-\n\ntraumatic-stress disorder, and that those ineffective-assistance claims warrant relief;\n\n(2) that prosecutorial misconduct infringed his right to a fundamentally fair and\n\nreliable sentencing proceeding in violation of the Sixth, Eighth, and Fourteenth\n\nAmendments; and (3) that even if each individual error was harmless, the cumulative\n\neffect of the errors warrants relief. After laying out the standard of review, we\n\naddress each in turn.\n\nI. Standard of Review\n\n The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.\n\n§ 2254, governs our review of habeas petitions and focuses on how the state court\n\nresolved the claim. Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011). “In general,\n\nif a convicted state criminal defendant can show a federal habeas court that his conviction\n\nrests upon a violation of the Federal Constitution, he may well obtain a writ of habeas\n\ncorpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 569 U.S.\n\n413, 421 (2013).\n\n 20\n\f A habeas petitioner must first exhaust his claims in state court before a federal\n\ncourt may review them. 28 U.S.C. § 2254(b)(1)(A). For claims that the state court\n\nadjudicated on the merits, we will grant habeas relief only if the petitioner establishes that\n\nthe state-court decision was “contrary to, or involved an unreasonable application of,\n\nclearly established Federal law, as determined by the Supreme Court of the United\n\nStates,” id. § 2254(d)(1), or that the state-court decision “was based on an unreasonable\n\ndetermination of the facts in light of the evidence presented in the State court\n\nproceeding,” id. § 2254(d)(2). (This is the standard we apply to every issue herein unless\n\notherwise specified.) Claims that the state court didn’t adjudicate on the merits, we\n\nreview de novo. Hooks v. Workman (Hooks II), 689 F.3d 1148, 1163–64 (10th Cir. 2012).\n\n The focus of § 2254(d) is the reasonableness of the state court’s decision. “The\n\nquestion under AEDPA is not whether a federal court believes the state court’s\n\ndetermination was incorrect but whether that determination was unreasonable—a\n\nsubstantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Relief is\n\nwarranted only “where there is no possibility fairminded jurists could disagree that the\n\nstate court’s decision conflicts with [the Supreme Court’s] precedents.” Harrington v.\n\nRichter, 562 U.S. 86, 102 (2011).\n\nII. Procedural Bar Regarding Mitigation Evidence\n\n Cuesta-Rodriguez argues that, “[d]ue to failures of his trial counsel,” the jury\n\nthat sentenced him to death didn’t hear “gold-standard mitigation” evidence about his\n\norganic brain damage and post-traumatic-stress disorder that “could readily have\n\n\n\n 21\n\fresulted in” the selection of a lesser punishment (“life or life without parole”).13\n\nAppellant’s Opening Br. at 13. But before reaching the merits, we need to decide\n\nwhether his ineffective-assistance-of-trial-counsel claim is procedurally barred.\n\n Cuesta-Rodriguez didn’t bring his ineffective-assistance-of-trial-counsel claim\n\non direct appeal, triggering a state procedural bar. See Okla. Stat. Ann. tit. 22, § 1089\n\n(“The only issues that may be raised in an application for post-conviction relief are\n\nthose that [w]ere not and could not have been raised in a direct appeal . . . .”). And\n\nCuesta-Rodriguez didn’t claim his appellate counsel was ineffective in his first post-\n\nconviction appeal. See Hatch v. State, 924 P.2d 284, 294 (Okla. Crim. App. 1996)\n\n\n\n 13\n This boils down to two main allegations, both of which surround the “[c]ore\n[m]itigation [e]vidence” that trial counsel allegedly failed to adduce. Appellant’s\nOpening Br. at 15. First, Cuesta-Rodriguez alleges defense counsel failed to\nsufficiently investigate and explain Cuesta-Rodriguez’s childhood brain injury and\nhis later lumberyard injury. Cuesta-Rodriguez insists that the psychological\nevaluation was insufficient and that he needed a “neuropsychological evaluation.” Id.\nat 17. From this, Cuesta-Rodriguez contests Dr. Choca’s findings (namely, his\nconclusions that Cuesta-Rodriguez had a high IQ and had recovered well from his\nhead injuries) and complains that “[t]he lack of investigation led not only to an\nuninformed jury but to a jury, as it turns out, falsely assured on the head injury\nquestion.” Id. at 18. Second, Cuesta-Rodriguez complains that his post-traumatic-\nstress disorder (and other mental illnesses) weren’t appropriately presented to the\njury. Those illnesses, he claims, “require treatment with appropriate medications”\nand benefit from such treatment. Id. at 19. Cuesta-Rodriguez claims that “[d]espite\nthe severity of Mr. Cuesta’s PTSD and other mental disorders . . . [,] the structured\nenvironment of prison combined with mental health counseling and psychotropic\nmedications will maintain Mr. Cuesta in a symptom-free state.” Id. at 25. Just as with\nhis organic-brain-damage claim, Cuesta-Rodriguez asserts that “it is obvious that he\nwas the victim of repeated traumatic events throughout his childhood and as an adult”\nand, therefore, that trial counsel failed in not presenting such evidence to the jury. Id.\nat 21. Cuesta-Rodriguez relies heavily on neuropsychological testing done by a\ndoctor retained by habeas counsel to make these claims.\n\n 22\n\f(“The issue of ineffective assistance of appellate counsel, like any other claim, must\n\nbe raised at the first available opportunity.”). He first raised his ineffective-assistance\n\nclaims in his second state post-conviction application in the OCCA—claiming the\n\nineffectiveness of trial, direct appellate, and first post-conviction counsel. Cuesta-\n\nRodriguez, No. PCD-2012-994, slip op. at 3, 5, 6. The OCCA deemed his ineffective-\n\nassistance claims waived. See id. at 3–4, 5, 7.\n\n Reviewing Cuesta-Rodriguez’s habeas petition, the district court concluded\n\nthat Cuesta-Rodriguez’s ineffective-assistance-of-counsel claims were also\n\nprocedurally barred. Cuesta-Rodriguez, 2016 WL 5485117, at 19.\n\n On appeal, Cuesta-Rodriguez urges us to review his ineffective-assistance-of-\n\ntrial-counsel claim (and so to review whether the assertedly deficient mitigation\n\npresentation violated the Sixth, Eighth, and Fourteenth Amendments), claiming that\n\nineffective appellate and first post-conviction counsel justify our excusing the\n\nprocedural bar. See Appellant’s Opening Br. at 9 (“The district court erred in dealing\n\nwith this huge and harmful deficit by holding the [ineffective-assistance-of-trial-\n\ncounsel] claim was procedurally barred from the reach of the federal courts.”).\n\n “[T]o bar federal review, a state procedural rule must be adequate to support\n\nthe judgment and independent from federal law.” Banks v. Workman, 692 F.3d 1133,\n\n1145 (10th Cir. 2012). When the adequacy and independence requirements are met,\n\nwe don’t review defaulted issues “unless the petitioner can demonstrate cause and\n\nprejudice or a fundamental miscarriage of justice.” Anderson v. Sirmons, 476 F.3d\n\n\n\n 23\n\f1131, 1140 (10th Cir. 2007) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th\n\nCir. 1998)).\n\n On appeal, Cuesta-Rodriguez claims (1) that the Oklahoma procedural bar\n\nisn’t adequate, (2) that he demonstrated cause and prejudice for failing to bring his\n\nineffective-assistance-of-trial-counsel claim on direct appeal, and (3) that a\n\nmiscarriage of justice occurred that allows us to review his claim. We address each\n\nclaim in turn.\n\n A. Adequacy of the Procedural Bar14\n\n Cuesta-Rodriguez claims that Oklahoma’s procedural bar requiring him to\n\nraise ineffective-assistance claims on direct appeal is inadequate.15 He asserts that\n\nbecause his trial and direct-appeal counsel both hailed from the Oklahoma County\n\nPublic Defender’s Office (OCPD), a structural conflict of interest prevented appellate\n\ncounsel from properly bringing an ineffective-assistance-of-trial-counsel claim.\n\n To be adequate, “a state procedural rule must be ‘strictly or regularly\n\nfollowed’ and applied ‘evenhandedly to all similar claims.’” Banks, 692 F.3d at 1145\n\n(quoting Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998)). And, as Oklahoma\n\n\n\n\n 14\n As a preliminary matter, Oklahoma claims that Cuesta-Rodriguez waived\nthis argument, so we shouldn’t address it. We assume the argument is properly before\nus, and we reach the merits of his claim.\n 15\n Cuesta-Rodriguez doesn’t contest the bar’s independence—the other part of\nthe test. See Appellant’s Opening Br. at 41 (only mentioning adequacy in its\nargument section); Banks, 692 F.3d at 1145.\n\n 24\n\fpoints out, we have previously found the Oklahoma procedural bar applied here to be\n\nboth adequate and independent. See id. at 1444–47.\n\n Oklahoma’s system for raising ineffective-assistance-of-counsel claims on\n\ndirect appeal is inadequate when trial and appellate counsel are too closely\n\nintertwined. Cannon v. Mullin, 383 F.3d 1152, 1173 (10th Cir. 2004); English, 146 F.3d\n\nat 1263–64. Such conflict exists when trial and appellate counsel are one and the\n\nsame. English, 146 F.3d at 1263–64. And we have held that, sometimes, counsel from\n\nthe same office are conflicted in choosing to raise ineffective-assistance claims\n\nimplicating their colleagues. Cannon, 383 F.3d at 1173 (“If a criminal defendant is\n\nrepresented by trial and appellate counsel from the same office, appellate counsel’s\n\nassessment of trial counsel’s performance may be less than completely objective. An\n\nunderstandable, although inappropriate, regard for collegiality may restrain appellate\n\ncounsel from identifying and arguing trial-attorney error.”).\n\n “[W]hether trial and appellate attorneys from the same ‘office’ should be deemed\n\n‘separate’ counsel will turn on the specific circumstances.” Id. “Presenting an ineffective-\n\nassistance-of-counsel claim may well damage the reputation of the trial attorney and the\n\noffice for which both trial and appellate counsel work.” Id.; see also id. (“Arguing\n\nineffective assistance with respect to a colleague’s performance is saying that the\n\nperformance was not only inferior, but unreasonable.”). Thus, we must be wary about\n\nassuming that counsel is “separate” merely because the individual lawyers are distinct.\n\nSee id. (“[T]wo lawyers from the same private law firm are often treated as one for\n\nconflict-of-interest purposes.”).\n\n 25\n\f “[T]he state bears the burden of proving the adequacy of a state procedural bar in\n\norder to preclude federal habeas review.” Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir.\n\n1999); see also id. at 1216–17 (“[T]he state is undoubtedly in a better position to\n\nestablish the regularity, consistency and efficiency with which it has applied Rule 3.1116\n\nin the past to allow direct appellants to develop a factual record challenging the adequacy\n\nof trial counsel than are habeas petitioners, who often appear pro se, to prove the\n\nconverse.”). But a defendant complaining of such a conflict needs, “at a minimum,” to\n\nprovide “specific allegations . . . as to the inadequacy of the state procedure.” Id. at 1217;\n\nsee also Cannon, 383 F.3d at 1173–74 (concluding counsel wasn’t separate based “[o]n\n\nthe record before” the court).\n\n Oklahoma highlights a number of cases in which appellate counsel at OCPD,\n\nincluding Cuesta-Rodriguez’s appellate counsel, have pursued ineffective-assistance-of-\n\ncounsel claims. See, e.g., Coddington v. State, 254 P.3d 684, 692, 713–14 (Okla. Crim.\n\nApp. 2011) (claim of ineffective assistance of trial counsel based on failure to introduce\n\nmitigation evidence during capital penalty phase raised by Cuesta-Rodriguez’s appellate\n\ncounsel); Jiminez v. State, 144 P.3d 903, 904–07 (Okla. Crim. App. 2006) (claim of\n\nineffective assistance of trial counsel raised by Cuesta-Rodriguez’s appellate counsel)17;\n\n\n 16\n The Oklahoma Court of Criminal Appeals’ Rule 3.11 governs\nsupplementation of the record. See Rule 3.11, Rules of the Oklahoma Court of\nCriminal Appeals, Title 22, Ch. 18, App. (2003)\n 17\n Cuesta-Rodriguez argues that Coddington and Jiminez aren’t relevant,\nnoting that neither case “require[d] investigation via a new expert never hired before\nin the case by the office.” Appellant’s Reply Br. at 8. We disagree. That Cuesta-\n\n 26\n\fsee also, e.g., Frederick v. State, 400 P.3d 786, 825–32 (Okla. Crim. App. 2017) (claim\n\nof ineffective assistance of appellate counsel for not raising claim of ineffective\n\nassistance of trial counsel), overruled by Williamson v. State, 422 P.3d 752 (Okla. Crim.\n\nApp. 2018); Davis v. State, 268 P.3d 86, 97, 129–38 (Okla. Crim. App. 2011) (same)18;\n\nWarner v. State, 144 P.3d 838, 861, 868, 872–77, 891–96 (Okla. Crim. App. 2006)\n\n(same), overruled by Taylor v. State, 419 P.3d 265 (Okla. Crim. App. 2018).\n\n In light of those cases, Cuesta-Rodriguez hasn’t explained how and why his trial\n\nand direct-appeal counsel were problematically interconnected. He asserts only that trial\n\nand appellate counsel both worked for the OCPD—and that they work “just down the\n\nhall” from each other. Appellant’s Opening Br. at 44 n.21; cf. Cannon, 383 F.3d at 1173\n\n(“A statewide public defender’s office with independent local offices, and perhaps even a\n\ndistinct appellate office, would not raise the same concerns as when trial and appellate\n\ncounsel work in adjacent rooms.”). From that proximity, he infers potential bases for\n\nconflicts, like budgetary concerns and loyalty—potential conflicts that exist whenever\n\ncounsel share an employer. See Appellant’s Opening Br. at 43 (“Thus, the office budget\n\nmust be tapped for an expert to investigate a colleague or such investigative funding must\n\n\n\nRodriguez’s appellate counsel has brought ineffective-assistance claims tilts the\nscales in favor of separateness.\n 18\n Cuesta-Rodriguez asserts that the ineffective-assistance claims in this case\nwere “so awkward and difficult” that his appellate counsel was “actually\ndiscouraged” from bringing such claims. Appellant’s Opening Br. at 45 n.23.\nWithout more, this unsubstantiated allegation doesn’t help Cuesta-Rodriguez’s\nargument.\n\n\n 27\n\fbe humiliatingly and improbably requested from the court fund if that is even possible.”).\n\nCuesta-Rodriguez also invites us to “[i]magine” the dilemma appellate counsel might\n\nbe placed in. Id. at 45 n.23. Hence Cuesta-Rodriguez claims that an evidentiary hearing\n\nis needed “to explore the specific circumstances and ascertain whether counsel could be\n\ndeemed separate.”19 Id. at 44.\n\n But Cuesta-Rodriguez hasn’t shown that a relationship to trial counsel hindered\n\nhis appellate counsel. So his case bears little resemblance to our prior cases. See 383 F.3d\n\n\n\n\n 19\n At oral argument, Cuesta-Rodriguez made a point that doesn’t appear in his\nbriefing: that direct-appeal counsel couldn’t pursue her ineffective-assistance-of-\ncounsel claim because of the financial hurdles and inhibition of the head of the\noffice. He argued:\n\n The nature of the conflict in this case is that the trial lawyer couldn’t get\n money from Bob Ravitz, who is the head of the Oklahoma County Public\n Defender’s Office, and therefore didn’t call certain types of experts to\n testify at trial. Now what direct-appeal counsel would have had to do\n would have been to go back to Bob Ravitz and say, “[T]hat money that\n you refused to give at the trial level was so constitutionally unreasonable\n that I now want you to give me that money so that I can hire those experts\n to prove how constitutionally unreasonable your past behavior was.”\n That’s where the conflict in this case comes in.\n\nOral Argument at 7:48–8:38, Cuesta-Rodriguez v. Carpenter, No. 16-6315 (10th Cir.\nMay 17, 2018). He then distinguished that kind of request from a run-of-the-mill\nineffective-assistance claim, describing it as “exceedingly more difficult.” Id. at\n8:42–45. But, in response to a panelist’s question, he admitted: “We didn’t make that\nargument [on appeal] in those terms.” Id. at 9:48–53. So that precise argument is\nwaived. See, e.g., Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir.\n1998) (“Issues raised for the first time at oral argument are considered waived.”)\nCuesta-Rodriguez’s opening brief does briefly mention the difficulty of “pursuing\nasserted office failings with office money.” See Appellant’s Opening Br. at 45 n.23\n(quoting R. vol. 1 at 249 n.7). But we deal with that distinct argument in the main\ntext.\n\n 28\n\fat 1173–74 (concluding trial counsel wasn’t separate when the record was “strongly\n\nsuggestive” of the fact that “appellate counsel had a policy of not claiming ineffective\n\nassistance by public defenders at trial”); Carter v. Gibson, 27 F. App’x 934, 943 (10th\n\nCir. 2001) (finding procedural bar inadequate when appellate counsel failed to raise\n\nineffective assistance of trial counsel on direct appeal after trial counsel assisted in\n\nwriting the appellate brief).\n\n Oklahoma’s cases showing regularly-made ineffective-assistance claims suffice to\n\ndefeat Cuesta-Rodriguez’s argument when weighed against the nonexistent conflict\n\nevidence proffered. See Cannon, 383 F.3d at 1173–74 (“The culture of an office can also\n\nmake a substantial difference. A history of raising ineffective-assistance claims could\n\nallay concerns.”); Smallwood v. Gibson, 191 F.3d 1257, 1270 (10th Cir. 1999) (rejecting\n\nthe “contention that office policy prevented . . . appellate counsel from bringing\n\nineffective assistance . . . claims” when “[t]he record contain[ed] no evidence that such a\n\npolicy existed” and instead, “the record indicate[d] that petitioner’s appellate counsel\n\naggressively raised” multiple issues, including ineffective assistance, on direct appeal).\n\nThus, we reject Cuesta-Rodriguez’s argument and conclude that Oklahoma’s procedural\n\nbar here was adequate (and that Cuesta-Rodriguez isn’t entitled to an evidentiary hearing\n\non the adequacy of that bar).20\n\n\n\n 20\n Cuesta-Rodriguez also makes passing reference to Kimmelman v. Morrison,\n477 U.S. 365 (1986). He notes that “Oklahoma’s rule [3.11] [i]s inadequate unless\nthe ‘Kimmelman imperatives’ [a]re met.” Appellant’s Opening Br. at 42 (quoting\nEnglish, 146 F.3d at 1263). But he doesn’t argue that they aren’t met here (apart from\n\n 29\n\f B. Cause to Overcome Default\n\n To avoid the application of the procedural bar, Cuesta-Rodriguez argues that\n\nhe can demonstrate cause for his failure to raise his ineffective-assistance-of-trial-\n\ncounsel claim on direct appeal.\n\n First, he claims that appellate counsel was ineffective because his appellate\n\ncounsel wasn’t “truly separate” from his trial counsel. Appellant’s Opening Br. at 46.\n\nBut he immediately runs into a problem—his ineffective-assistance-of-appellate-\n\ncounsel claim is procedurally defaulted because he failed to bring it in his first post-\n\nconviction application. See Hatch, 924 P.2d at 294. Thus, Cuesta-Rodriguez argues\n\nthat his first post-conviction counsel was also ineffective, thereby establishing cause\n\nfor the failure.\n\n Generally, “ineffective assistance of counsel in postconviction proceedings\n\ndoes not establish cause for the procedural default of a claim.” Fairchild v. Trammell,\n\n784 F.3d 702, 720 (10th Cir. 2015) (citing Coleman v. Thompson, 501 U.S. 722, 756–\n\n57 (1991)); see also Coleman, 501 U.S. at 752 (“There is no constitutional right to an\n\nattorney in state post-conviction proceedings. Consequently, a petitioner cannot\n\nclaim constitutionally ineffective assistance of counsel in such proceedings.” (citing\n\nPennsylvania v. Finley, 481 U.S. 551 (1987); and Murray v. Giarratano, 492 U.S. 1\n\n(1989)); 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during\n\n\n\n\nhis separate-counsel argument, which we have already addressed). So we needn’t get\ninto it.\n\n 30\n\fFederal or State collateral post-conviction proceedings shall not be a ground for relief\n\nin a proceeding arising under section 2254.”).\n\n We make an exception when “the initial-review collateral proceeding is the\n\nfirst designated proceeding for a prisoner to raise a claim of ineffective assistance at\n\ntrial,” because then “the collateral proceeding is in many ways the equivalent of a\n\nprisoner’s direct appeal as to the ineffective-assistance claim.” Martinez v. Ryan, 566\n\nU.S. 1, 11 (2012). This exception also applies when the “state procedural framework,\n\nby reason of its design and operation, makes it highly unlikely in a typical case that a\n\ndefendant will have a meaningful opportunity to raise a claim of ineffective\n\nassistance of trial counsel on direct appeal.” Trevino, 569 U.S. at 429.\n\nSo when a state’s scheme makes a post-conviction proceeding the defendant’s first\n\nopportunity to raise his trial counsel’s ineffective assistance, the ineffective\n\nassistance of post-conviction counsel can serve as cause to excuse a failure to raise it\n\nthen.\n\n Cuesta-Rodriguez claims that the “[l]ack of truly separate counsel on direct\n\nappeal means . . . that post-conviction was the first opportunity . . . to raise trial\n\ncounsel’s ineffectiveness.” Appellant’s Opening Br. at 46. Thus, Cuesta-Rodriguez\n\nasserts that post-conviction counsel’s failure to raise an ineffective-assistance claim\n\nconstitutes cause under the exception established in Martinez, 566 U.S. at 11, and\n\nTrevino, 569 U.S. at 429.\n\n\n\n\n 31\n\f But Cuesta-Rodriguez’s argument ignores the reality of Oklahoma’s\n\nineffective-assistance-claim system.21 “Oklahoma provides a reasonable time to\n\ninvestigate a claim of ineffective assistance before raising it on direct appeal.”\n\nFairchild, 784 F.3d at 721. An ineffective-assistance claim can be raised in the\n\nopening brief on appeal, and that brief can be accompanied by a request to\n\nsupplement the record. Id. In Fairchild, we noted that Oklahoma’s system “allowed\n\nappellate counsel to file the [appellate] brief, along with a Rule 3.11 motion to\n\nsupplement the trial record, 16 months after Defendant was sentenced, with access to\n\nthe transcript and record for nearly six months.” Id. at 722.\n\n Oklahoma points us to our decisions in Fairchild, 784 F.3d at 723, and Banks,\n\n692 F.3d at 1148, in which we determined that Oklahoma’s ineffective-assistance-\n\nclaim structure voids the need for the Martinez and Trevino safety-valve exception.\n\nIn Fairchild and Banks, we determined that Oklahoma’s procedural safeguards allow\n\nfor ineffective-assistance claims to be brought on direct appeal. That determination\n\ncontrols this case. Indeed, the district court concluded that Oklahoma’s Rule 3.11\n\n“allows defendants a meaningful opportunity to raise ineffective-assistance-of-trial-\n\ncounsel claims” on direct appeal. Cuesta-Rodriguez, 2016 WL 5485117, at 19.\n\n\n\n\n 21\n Rule 3.11(B) governs requests for supplementation of the record for direct\ncriminal appeals and allows criminal defendants the opportunity to discover and\ninclude more information regarding trial failures (including ineffective-assistance\nclaims). Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22,\nCh. 18, App. (2003).\n\n 32\n\f But Cuesta-Rodriguez makes two attempts to distinguish his case, arguing:\n\n(1) that because he didn’t have separate counsel at trial and on direct appeal, his first\n\nopportunity to challenge his trial counsel’s performance was his first post-conviction\n\napplication and (2) that “the structure and operation of the Oklahoma system,” which\n\nregularly results in defendants in Oklahoma and Tulsa Counties receiving\n\nrepresentation by the OCPD and the Tulsa County Public Defender’s Office,\n\nrespectively, both at trial and on direct appeal, restricts such defendants from\n\n“hav[ing] full access to Rule 3.11.”22 Appellant’s Opening Br. at 48. Both arguments\n\ncenter on Cuesta-Rodriguez’s not having had full access to Rule 3.11 due to\n\nconflicted advocates. But we have already concluded that Cuesta-Rodriguez had\n\nseparate counsel for his trial and direct appeal, so these arguments are foreclosed.\n\n And our conclusions in Fairchild pose an uphill battle for Cuesta-Rodriguez.\n\nThere, we concluded that Oklahoma’s regime was unlike the legal and structural\n\nbarriers that had worried the Supreme Court in Martinez and Trevino. Fairchild, 784\n\nF.3d at 723 (“Oklahoma law did not preclude raising on direct appeal a claim of\n\nineffective assistance of trial counsel—either as prohibited by state law, as in\n\nMartinez, or as a practical consequence of that law, as in Trevino . . . .”). After\n\nOklahoma presented evidence of public defenders having asserted ineffective-\n\n\n 22\n Oklahoma asserts that Cuesta-Rodriguez waived these arguments, so we\nshouldn’t address them. We assume the arguments are properly before us and reach\ntheir merits.\n\n\n\n 33\n\fassistance-of-counsel claims, we concluded that Mr. Fairchild hadn’t “shown that the\n\n‘design and operation’ of Oklahoma’s procedural framework ‘ma[d]e[ ] it highly\n\nunlikely in a typical case that a defendant w[ould] have a meaningful opportunity to\n\nraise a claim of ineffective assistance of trial counsel on direct appeal.’” Id. (alteration\n\nin original) (quoting Trevino, 569 U.S. at 429). Likewise, here, Cuesta-Rodriguez\n\nagrees that Oklahoma allows for ineffective-assistance claims on direct appeal but\n\nclaims that the public-defender system’s structure prevents defendants from\n\naccessing that right. But he has failed to show that “the practical consequence” of\n\nOklahoma’s set-up denies the average defendant a meaningful opportunity to raise an\n\nineffective-assistance claim. Id. So this isn’t a Martinez or Trevino case. Cf. Pavatt v.\n\nRoyal, 894 F.3d 1115, 1137 (10th Cir. 2017) (Briscoe, J., concurring and dissenting)\n\n(“[T]o bypass the OCCA’s procedural bar ruling and review [the petitioner’s] ineffective\n\nassistance claims on the merits” based on his separate-counsel argument “would be to\n\nadopt an entirely new, and potentially much broader, rule than was announced in\n\nMartinez and Trevino”).\n\n Martinez and Trevino don’t apply to Cuesta’s case, so we can’t review his first\n\npost-conviction counsel’s alleged ineffectiveness.23 Hence Cuesta-Rodriguez didn’t\n\n\n 23\n Cuesta-Rodriguez also forfeited his right to dispute his first post-conviction\ncounsel’s ineffectiveness. Oklahoma requires that a subsequent post-conviction\napplication be filed within 60 days “from the date the previously unavailable legal or\nfactual basis serving as the basis for a new issue is announced or discovered.” Rule\n9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Tit. 22, Ch. 18, App.\n(2012). As the OCCA determined, the date the OCCA denied Cuesta-Rodriguez’s\ninitial application for post-conviction relief (January 31, 2011) was the latest possible\n\n 34\n\fshow cause for his failure to timely raise his ineffective-assistance claims, and the\n\nprocedural bar holds. And we reject his request for an evidentiary hearing on the\n\nsame basis—namely, that he hasn’t provided specific allegations suggesting that\n\nOklahoma’s system was working unfairly.24\n\n C. Fundamental Miscarriage of Justice\n\n On appeal, Cuesta-Rodriguez argues for the first time that he has shown actual\n\ninnocence of the death penalty—i.e., that but for constitutional error, no reasonable\n\njury could have found that the aggravating circumstances of his crime outweighed the\n\nmitigating circumstances—and that this Court should therefore review his\n\nprocedurally defaulted claims under the miscarriage-of-justice exception. But we\n\nagree with Oklahoma that Cuesta-Rodriguez failed to preserve this argument for\n\nappellate review, and so we decline to consider it. See, e.g., Stouffer v. Trammell, 738\n\nF.3d 1205, 1221 n.13 (10th Cir. 2013) (“We do not generally consider issues that\n\nwere not raised before the district court as part of the habeas petition.”); Heard v.\n\n\n\n\ntime “that the alleged failings of first post-conviction counsel became apparent.” See\nCuesta-Rodriguez, No. PCD-2012-994, slip op. at 6–7. But Cuesta-Rodriguez filed\nhis second post-conviction application “on November 12, 2012, over one-and-a-half\nyears after the latest date upon which the factual basis of his claim against post-\nconviction counsel should have been discovered with the exercise of reasonable\ndiligence.” Id. at 7.\n 24\n Cuesta-Rodriguez relies on Watson v. New Mexico, 45 F.3d 385, 387–88\n(10th Cir. 1995), to support his claim that he should get an evidentiary hearing on his\nadequacy and cause concerns. But Watson was a case in which a pro se petitioner did\nprovide specific allegations to show his entitlement to an evidentiary hearing. Id. at\n388. Absent such allegations here, the two cases bear little similarity.\n\n 35\n\fAddison, 728 F.3d 1170, 1175 (10th Cir. 2013) (“We do not reach [the petitioner’s\n\nargument] in this case, however, because . . . we conclude that [the petitioner] never\n\nraised such a claim, in his petition or otherwise, before the federal district court.”).\n\n Cuesta-Rodriguez maintains that we should choose to address his actual-innocence\n\nargument because the Supreme Court’s opinion in Jenkins v. Hutton, 137 S. Ct. 1769\n\n(2017) (per curiam), changed the legal landscape. See United States v. Mora, 293 F.3d\n\n1213, 1218 (10th Cir. 2002) (noting that though “[w]e generally do not consider issues\n\nraised for the first time on appeal,” we will “occasionally” do so). But we aren’t\n\npersuaded.\n\n As the Supreme Court explained in Sawyer v. Whitley, 505 U.S. 333 (1992),\n\nactual-innocence claims are limited to arguments that “no reasonable juror would have\n\nfound the petitioner eligible for the death penalty under the applicable state law,” i.e., the\n\nelements of the crime itself and the existence of aggravating circumstances. Id. at 336,\n\n344–45; see also id. at 347 (“The ‘actual innocence’ requirement must focus on those\n\nelements that render a defendant eligible for the death penalty . . . .”). But, the Court\n\nexplained, the existence of “additional mitigating evidence that was prevented from being\n\nintroduced as a result of a claimed constitutional error” is not a proper basis for an actual-\n\ninnocence claim. Id. at 347. Later, discussing Sawyer, we explained that “even if state\n\nlaw considers the outweighing of mitigating circumstances by aggravating circumstances\n\nan ‘element’ of a capital sentence, it is not an element for purposes of the actual-\n\ninnocence inquiry.” Black v. Workman, 682 F.3d 880, 916 (10th Cir. 2012). These\n\nprecedents foreclose Cuesta-Rodriguez’s actual-innocence claim.\n\n 36\n\f Hutton hasn’t changed that. Indeed, in reversing a Sixth Circuit decision reviewing\n\nthe merits of a case under the miscarriage-of-justice exception to procedural default,\n\nHutton reaffirmed the core holding of Sawyer. See Hutton, 137 S. Ct. at 1773. The Hutton\n\nCourt explained that a reviewing court must analyze “whether a properly instructed jury\n\ncould have recommended death,” not “whether the alleged error might have affected the\n\njury’s verdict.” Id. at 1772.\n\n Cuesta-Rodriguez, though, seizes on the Hutton Court’s “[a]ssuming” that a court\n\ncould excuse default based on a “trial court’s failure to specify that, when weighing\n\naggravating and mitigating factors, the jury could consider only the aggravating\n\ncircumstances it found at the guilt phase.” Id.; see also Appellant’s Opening Br. at 40\n\n(“This explication overruled [the Tenth Circuit’s] prior jurisprudence that held the\n\nconcept of innocence of the death penalty did not extend to the weighing process.” (citing\n\nBlack, 682 F.3d at 916)). But the Hutton Court assumed potential error only to reverse the\n\nSixth Circuit’s faulty application of Sawyer—nothing in the Court’s discussion\n\ncontradicted its earlier decisions. See Hutton, 137 S. Ct. at 1772–73. In short, nothing in\n\nHutton supports our reviewing Cuesta-Rodriguez’s actual-innocence claim. And\n\naddressing this fact-laden inquiry when no lower reviewing court did—even\n\ntangentially—isn’t justified here.\n\n * *\n\n Having rejected all of Cuesta-Rodriguez’s arguments, we don’t reach the merits of\n\nhis ineffective-assistance claims. We turn next to his second proposition on appeal.\n\n\n\n 37\n\fIII. Prosecutorial Misconduct\n\n Cuesta-Rodriguez claims that “[i]n the penalty phase closing arguments, the\n\nprosecutors engaged in a flagrant campaign to denigrate or completely invalidate the\n\nmitigating evidence.” Appellant’s Opening Br. at 55. He claims that “[t]hese\n\nprosecutorial efforts” “precluded [the jury] from considering as a mitigating factor,\n\nan[] aspect of [Cuesta-Rodriguez’s character] . . . and [some] circumstances of the\n\noffense that [Cuesta-Rodriguez] proffer[ed] as a basis for a sentence less than death.”\n\nId. at 56 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)). That\n\nprosecutorial misconduct, he claims, denied him a fundamentally fair trial in\n\nviolation of the Sixth, Eighth, and Fourteenth Amendments.\n\n “[O]ur interest is in whether [Cuesta-Rodriguez] got a fair trial; ‘inappropriate\n\nprosecutorial comments, standing alone, [do] not justify a reviewing court to reverse a\n\ncriminal conviction obtained in an otherwise fair proceeding.’” Matthews v. Workman,\n\n577 F.3d 1175, 1186 (10th Cir. 2009) (second alteration in original) (quoting United\n\nStates v. Young, 470 U.S. 1, 11 (1985)). Instead, we reverse for prosecutorial misconduct\n\nwhen errant remarks “so infected the trial with unfairness as to make the resulting\n\nconviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643\n\n(1974); see also Hanson v. Sherrod, 797 F.3d 810, 843 (10th Cir. 2015) (“Prosecutors are\n\nprohibited from violating fundamental principles of fairness, which are basic\n\nrequirements of Due Process.”). That “objectionable content was invited by . . . the\n\ndefense” doesn’t “excuse improper comments,” but it may be considered in\n\n“determin[ing] [the misconduct’s] effect on the trial as a whole.” Darden, 477 U.S. at\n\n 38\n\f182; see also Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000) (“When a prosecutor\n\nresponds to an attack made by defense counsel, [this Court] evaluate[s] that response in\n\nlight of the defense argument.” (quoting Moore v. Reynolds, 153 F.3d 1086, 1113 (10th\n\nCir. 1998)). “[T]he appropriate standard of review for such a claim on [habeas] is the\n\nnarrow one of due process, and not the broad exercise of supervisory power.” Hanson,\n\n797 F.3d at 843 (second alteration in original) (quoting Darden v. Wainwright, 477 U.S.\n\n168, 181 (1986)).\n\n Cuesta-Rodriguez contests the OCCA’s conclusions that only one\n\nprosecutorial-misconduct error occurred and that the one error—the first guilt-trip\n\ncomment—was harmless. He asserts other comments were also errors, and not\n\nharmless ones.\n\n A. Which Statements, if Any, Were Errors?\n\n Cuesta-Rodriguez highlights multiple prosecution statements—(1) those\n\nsuggesting that “the [defense’s] mitigation case was an effort to send jurors on a guilt\n\ntrip” and that Cuesta-Rodriguez “shamefully” tried to use his family as a human\n\nshield and (2) those discussing instruction nine, regarding mitigation—claiming all\n\nwere error. Appellant’s Opening Br. at 55. The OCCA determined that only the\n\nprosecution’s first guilt-trip statement was an error. We first address the\n\nprosecution’s comments that allegedly denigrated the defense’s mitigation evidence\n\nbefore turning to the comments regarding jury instruction nine. After doing so, we\n\naddress whether the errors, if any, were harmless.\n\n\n\n 39\n\f 1. Guilt and Shame Comments\n\n The OCCA found that the first guilt-trip comment was error. The OCCA didn’t\n\nfind the other statements regarding guilt to be error, although the court did find that\n\nthe comments came “very close to crossing this line.” Cuesta-Rodriguez, 241 P.3d at\n\n244. But Cuesta-Rodriguez argues that other guilt-based comments were also errors,\n\nas well as the shame-on-him (said twice) and human-shield comments. Cuesta-\n\nRodriguez thus claims that “[t]he OCCA’s holding is contrary to or an unreasonable\n\napplication of Supreme Court precedent.” Appellant’s Opening Br. at 59.\n\n Two facts counter Cuesta-Rodriguez’s argument. First, defense counsel didn’t\n\nobject to the shame-on-him and human-shield comments contemporaneously. See\n\nTrice v. Ward, 196 F.3d 1151, 1167 (10th Cir. 1999) (noting that the lack of an objection,\n\n“while not dispositive, is relevant”). Second, in evaluating prosecution comments’\n\nimpact, we consider whether the defense invited the comments. See Darden, 477 U.S. at\n\n182 (“[T]he idea of ‘invited response’ is used not to excuse improper comments, but to\n\ndetermine their effect on the trial as a whole.” (quoting Young, 470 U.S. at 13)); see also\n\nTillman, 215 F.3d at 1129. Statements of family members that they “love” a defendant\n\naren’t “‘relevant mitigating evidence’ on which a jury legitimately might . . . ground[]\n\nfeelings of sympathy.” Coleman v. Saffle, 869 F.2d 1377, 1393 (10th Cir. 1989). And\n\ndefense counsel attempted to elicit sympathy for Cuesta-Rodriguez’s family—his son in\n\nparticular—based on the pain they would feel if he received the death penalty. Thus, the\n\n\n\n\n 40\n\fsecond shame-on-him comment, as well as the guilt-trip comments, when viewed in light\n\nof the defense’s approach, were less harmful than they otherwise might have been.25\n\n Beyond the context in which the prosecutor’s comments arose, Cuesta-\n\nRodriguez points to little federal law to support his proposition that the OCCA’s\n\nconclusion (that the comments weren’t error) was contrary to established federal law.\n\nHe cites Dodd v. Trammell, 753 F.3d 971 (10th Cir. 2013), as a case in which “an\n\nexperienced prosecutor knowingly crossed the line in the penalty phase for an\n\nexpected effect on the sentencing determination.” Appellant’s Opening Br. at 60. But\n\nDodd concerned inappropriate victim-impact testimony, and its holding has little\n\nbearing on this case. In Dodd, prosecutors had introduced victim-impact evidence in\n\nclear violation of Supreme Court precedent, but the OCCA had concluded that the\n\nviolation was harmless. 753 F.3d at 996–97.26 Though we reversed the OCCA’s\n\ndecision, we took care to note that the case was an outlier, as evidenced by “the sheer\n\n\n\n\n 25\n This point has no bearing on the human-shield and the first shame-on-him\ncomments. Cuesta-Rodriguez claims that the prosecution’s comments unfairly\ntargeted one source of his mitigation evidence: the statements that his Cuban family\nmembers gave. See Appellant’s Opening Br. at 57 (“In Mr. Cuesta’s case, it was\nprofoundly unfair for the prosecution to argue that Mr. Cuesta acted in a shameful\nmanner in presenting statements from his family in Cuba to the jury, particularly\ngiven his and their unusual circumstances.”). But we note only that the defense’s\nemotional plea is a factor to consider when analyzing the prosecution’s statements in\nresponse.\n 26\n The OCCA had also concluded that the victim-impact statements didn’t\nviolate the defendant’s Eighth Amendment rights, but we deemed that conclusion\ncontrary to clearly established federal law. Dodd, 753 F.3d at 996.\n\n 41\n\fvolume” of problematic testimony and a “weak[] case for the death penalty.” Id. at\n\n998.\n\n Ignoring the differences between the two cases, Cuesta-Rodriguez contends\n\nthat Dodd announces a rule (“the Dodd inference”) that reversal is particularly\n\nappropriate when prosecutorial misconduct was purposeful. Appellant’s Reply Br. at\n\n35. We see no such rule in Dodd—but even if we did, we aren’t persuaded that\n\nCuesta-Rodriguez has shown that the prosecutors’ statements amounted to purposeful\n\n(and erroneous) manipulation. As Oklahoma highlights, the prosecutors told the jury\n\nthat the mitigation evidence could factor into its decision. For example, one\n\nprosecutor told the jury to “consider” what Cuesta-Rodriguez’s family members\n\n“ha[d] to say.” Trial Tr. vol. VII at 1284:10–11.\n\n Our decision in Hanson is more on point. See 797 F.3d at 840 (reiterating the\n\nstandard that “we cannot say that ‘[a] state court’s determination that a claim lacks\n\nmerit’ is wrong on habeas ‘so long as “fairminded jurists could disagree” on the\n\ncorrectness of the state court’s decision’” (alteration in original) (quoting\n\nHarrington, 562 U.S at 101)). In that case, we upheld the OCCA’s conclusion that it\n\nwasn’t error for a prosecutor to state that it “is also clear that life without parole is\n\nnot enough accountability for this defendant.” Id. at 846. We rejected the argument\n\nthat the OCCA’s conclusion “effectively precluded the jury from considering mitigating\n\nevidence.” Id. at 847. So too here: We can’t say that the prosecution’s comments\n\nprevented the jury from examining the defense’s mitigation evidence. Cuesta-Rodriguez\n\n\n\n 42\n\ffails to point to a Supreme Court case suggesting otherwise, thus failing to meet his\n\nburden under AEDPA.\n\n And as Oklahoma points out, we have denied habeas relief in cases involving\n\nsimilar prosecutorial comments. See, e.g., Simpson v. Carpenter, 912 F.3d 542, 587 (10th\n\nCir. 2018) (noting that the prosecutor had “improperly denigrated [the petitioner’s]\n\nmitigating evidence” by “suggesting the defense should be ashamed for relying on [the\n\npetitioner’s] family support and mental health,” but concluding that none of the\n\nprosecutor’s comments, “separately or cumulatively . . . deprived [the petitioner] of a\n\nfundamentally fair sentencing proceeding”); Bland v. Sirmons, 459 F.3d 999, 1026 (10th\n\nCir. 2006) (rejecting the claim that the prosecutor had “improperly demeaned [the\n\npetitioner’s] mitigating evidence” by calling pieces of that evidence “excuses” and asking\n\nwhether those pieces should “act [as a] shield from accepting the full responsibility for\n\nhis actions” (internal quotation marks and citation omitted)); Pickens v. Gibson, 206 F.3d\n\n988, 999–1000 (10th Cir. 2000) (denying habeas relief in a case where the prosecutor\n\nreferred to a defense argument as a “guilt trip”). So we don’t think the OCCA’s\n\nconclusion—that just one prosecution comment was error—was contrary to established\n\nfederal law.\n\n But Cuesta-Rodriguez makes another argument.27 He claims that the OCCA\n\n(and the district court) incorrectly analyzed the errors separately (rather than\n\n\n 27\n Oklahoma claims this argument wasn’t raised at the district court and that\nCuesta-Rodriguez didn’t argue for plain-error review, so we shouldn’t address it. But\nwe assume we can address it, and we do so.\n\n 43\n\ftogether), correctly pointing out that “all the conduct must be considered ‘in toto\n\nbecause individual harmless prosecutorial errors can add up to make a trial\n\nfundamentally unfair in the aggregate.’” Appellant’s Opening Br. at 60 (quoting Le v.\n\nMullin, 311 F.3d 1002, 1022 (10th Cir. 2002)). Building this argument, Cuesta-\n\nRodriguez argues that the OCCA failed to give the shame-on-him comments any\n\nweight in assessing the impact of the erroneous guilt-trip comment.\n\n We aren’t persuaded. Under the heading “Prosecutorial Misconduct,” the\n\nOCCA addressed Cuesta-Rodriguez’s “claims that numerous instances of improper\n\nargument and questioning of witnesses during the sentencing phase of his trial\n\nproduced a sentence that failed to meet the heightened standard of reliability in death\n\npenalty cases.” Cuesta-Rodriguez, 241 P.3d at 243. After “review[ing] the prosecutors’\n\nquestions and comments cited by Cuesta-Rodriguez as improper,” the OCCA concluded\n\nthat “[w]ith one exception, . . . nothing in any of those questions or comments,\n\nindividually or cumulatively, [went] beyond an attempt to minimize the effect of the\n\nevidence presented by the defense, or [went] beyond discussing the evidence in arguing\n\nfor an appropriate sentence.” Id. at 243 (emphasis added). The OCCA wasn’t required to\n\naddress the harmlessness of non-errors. Only actual errors need be included. Le, 311 F.3d\n\nat 1023. The OCCA did address the harmlessness of the one error it found—the merits of\n\nwhich we discuss a little later.\n\n 2. Jury Instruction Comments\n\n “During the sentencing phase of a capital case, the defendant has a well-\n\nestablished right to introduce ‘relevant’ mitigating evidence that he proffers as a\n\n 44\n\fbasis for a sentence less than death.” Coleman, 869 F.2d at 1392 (citing Lockett, 438\n\nU.S. at 604).\n\n Cuesta-Rodriguez—pointing to various prosecution statements concerning the\n\njury instruction—alleges that the prosecution improperly exploited instruction nine’s\n\nlanguage to preclude consideration of mitigating evidence.28\n\n Reviewing the prosecution’s approach to instruction nine, the OCCA\n\nconcluded that “the prosecutor in this case did not urge the jury to categorically\n\ndisregard the proffered mitigation evidence, but instead argued that the evidence\n\noffered in mitigation did not support an inference of reduced culpability.” Cuesta-\n\nRodriguez, 241 P.3d at 243. To prevail here, Cuesta-Rodriguez needs to show us that\n\nthe OCCA’s determination was unreasonable.\n\n The OCCA’s conclusion that the prosecution didn’t try to make the jury ignore\n\nmitigation evidence wasn’t unreasonable. The prosecution didn’t tell the jury not to\n\nconsider Cuesta-Rodriguez’s mitigation evidence. Instead, the prosecution argued\n\nthat the mitigating testimony shouldn’t weigh against a sentence of death—and that’s\n\npermissible. The prosecution can advocate what evidence the jury should value. It\n\n\n\n 28\n Oklahoma has since amended the instruction. See Grant v. Royal, 886 F.3d\n874, 933–34 (10th Cir. 2018) (discussing the reformed instruction); Harris v. State, 164\nP.3d 1103, 1114 (Okla. Crim. App. 2007) (expressing concern at “the consistent\nmisuse” of the old instruction). Cuesta-Rodriguez highlights flaws in the instruction\nwhile conceding that we have held that the instruction doesn’t violate the\nConstitution. See Hanson, 797 F.3d at 849–52. And Cuesta-Rodriguez also concedes\nthat he didn’t obtain a COA on the issue.\n\n\n 45\n\fjust can’t tell the jury that it can’t consider the mitigation evidence unless it speaks to\n\nculpability.\n\n Cuesta-Rodriguez relies on our decision in Le, where we noted that the\n\nprosecution’s arguments “may have implied that the jury had the ability to ignore the\n\nlegal requirement that it must consider mitigating evidence.”29 311 F.3d at 1018. But\n\nhe fails to mention that in Le, we concluded that “the jury was appropriately\n\ninformed by the jury instructions and by closing arguments that it had to consider\n\nmitigating evidence before deciding to impose a death sentence.” Id. The same is true\n\nhere.\n\n We reached a similar conclusion in Hanson, 797 F.3d at 851–52. In that case,\n\n“the prosecutor told the jury to consider whether any of the mitigating circumstances\n\n‘really extenuate or reduce [the defendant’s] degree of culpability or blame in this\n\ncase.’” Id. at 851. But we upheld the OCCA’s decision affirming the defendant’s death\n\nsentence because the prosecutor also encouraged the jury to consider the mitigation\n\nevidence and the judge instructed the jury to consider mitigation evidence. Id. at 851–\n\n52; see also Grant v. Royal, 886 F.3d 874, 939 (10th Cir. 2018) (describing our\n\ndecision in Hanson, and noting that “because the moral-culpability text itself was not\n\nunconstitutional—at least in the context of other, broadening instructions—the\n\n\n 29\n Of course, as Oklahoma notes, “Le is not an opinion of the Supreme Court\nand cannot provide clearly established federal law.” Appellee’s Response Br. at 92.\nBut we address Cuesta-Rodriguez’s argument head-on anyway.\n\n\n\n 46\n\fprosecutor’s isolated references to that text, without more, did not effect a\n\nconstitutional violation”).\n\n We again upheld a death sentence in Grant—a case in which the prosecution\n\nmade statements like, “[W]hat the law says is that before something can be\n\nmitigating it must reduce the moral culpability or blame of the defendant.” 886 F.3d\n\nat 937. But the trial court in Grant gave the same instruction given here and in\n\nHanson, listing non-culpability-related circumstances as mitigation. Grant, 886 F.3d\n\nat 940; Hanson, 797 F.3d at 851. And in affirming the sentence, we relied on the\n\nameliorating jury instructions as a whole and prosecution comments interpreting\n\nmitigation circumstances more broadly. Grant, 886 F.3d at 939–40.\n\n We have comparable circumstances here. The prosecution similarly gave a\n\nbroader view of the mitigating evidence than some isolated comments might suggest,\n\nsaying things like:\n\n  “[Y]ou still say, all right, does that outweigh the mitigating\n evidence that we’ve heard?” Trial Tr. vol. VII at 1281:17–19.\n\n  “And, again, I’m not telling you don’t listen to [Cuesta-\n Rodriguez’s family members]; by all means, you consider what\n they have to say.” Id. at 1284:9–11.\n\n  “[W]e’re not asking you to ignore the evidence, but embrace it.”\n Id. at 1315:11–12.\n\nSee also id. at 1273:3 (“Pay close attention to the Judge’s instruction.”). So here, like\n\nin Hanson, “the prosecutor made a number of other comments to the jury that\n\nencouraged them [sic] to consider any and all mitigating evidence they thought\n\nrelevant.” 797 F.3d at 851.\n\n 47\n\f And the jury here heard the same instructions we found curative in Hanson.\n\nSee Original R. vol. VII at 1285–88; Hanson, 797 F.3d at 851.\n\n First, the judge instructed the jury on sixteen specific mitigating\n\ncircumstances, “some of which had nothing to do with [the petitioner’s] moral\n\nculpability.” Hanson, 797 F.3d at 851 (listing mitigating circumstances including the\n\npetitioner’s emotional history, family history, history while incarcerated, and his having a\n\nson). “In other words, in this instruction . . . the trial judge specifically characterized as\n\n‘mitigating’ factors that ordinarily would not be deemed to have extenuated or reduced\n\n[the petitioner’s] moral culpability or blame.” Grant, 886 F.3d at 940 (describing\n\nmitigating circumstances involving the petitioner’s family and emotional history as not\n\nextenuating moral culpability or blame). The court instructed the jury on “mitigating”\n\nevidence, such as Cuesta-Rodriguez’s volunteer work, his learning to read and write\n\nEnglish while in federal detention, his family ties, and his relationship with his son.\n\nOriginal R. vol. VII at 1285. And just like in Hanson and Grant, that evidence was\n\ndescribed as mitigating even though it doesn’t speak to culpability. Hanson, 797 F.3d at\n\n851 (“Viewing the challenged instruction in the context of all the instructions, we do not\n\nthink the jury would have felt precluded from considering any mitigating\n\nevidence . . . .”).\n\n Next, “in the same instruction that included the moral-culpability text, there was\n\nlanguage that vested the jury with the responsibility for determining what evidence was\n\nmitigating.” Grant, 886 F.3d at 940 (discussing Hanson). Here, in instruction nine, the\n\ndistrict court told the jury that “[t]he determination of what circumstances are mitigating\n\n 48\n\fis for you to resolve under the facts and circumstances of this case.” Original R. vol. VII\n\nat 1284; see also Grant, 886 F.3d at 940 (relying on this exact instruction and declaring\n\nthat “a jury is presumed to follow the trial court’s instructions”); Hanson, 797 F.3d at 851\n\n(finding that this sentence “broadened any potential limitations imposed by the first\n\nsentence of the instruction”). So, again, the court correctly informed the jury of the law.\n\n Last, in the court’s final instruction in this case, it told the jury that “in this part of\n\nthe trial, you may consider sympathy or sentiment for the defendant in deciding whether\n\nto impose the death penalty.” Original R. vol. VII at 1295. So the jury instructions\n\naccurately described the law (including emphasizing the inclusion of mitigating\n\ncircumstances). See Grant, 886 F.3d at 941 (explaining that accurate, clear jury\n\ninstructions are relevant “in concluding that the OCCA would not have been\n\nunreasonable in determining that the prosecution’s closing argument did not have the\n\nunconstitutional effect of precluding the jury from considering the petitioner’s\n\nproffered mitigating evidence that did not extenuate or reduce moral culpability or\n\nblame”). We accord that substantial weight. See Boyde v. California, 494 U.S. 370,\n\n384 (1990) (noting that instructions from the court, “we have often recognized, are\n\nviewed as definitive and binding statements of the law” (citations omitted)). And it’s\n\nworth noting that defense counsel spent substantial time informing the jury of its\n\nability to consider mitigating evidence as well.\n\n Given all that, we can’t say that the OCCA’s decision was contrary to federal\n\nlaw.\n\n\n\n 49\n\f Attempting to escape that conclusion, Cuesta-Rodriguez argues that the jury’s\n\nquestion regarding the legal definition of culpability shows that the prosecution’s\n\ncomments misled the jurors. See Appellant’s Opening Br. at 69–70 (“The note they\n\nsent out during sentencing deliberations asking for guidance on the ‘legal definition\n\nof culpability’ tells us the prosecution’s false boundary was working great for them,\n\nthough unconstitutionally.” (quoting Trial Tr. vol. VII at 1318:22)). From this,\n\nCuesta-Rodriguez argues, “We know to near certainty the prosecution’s improper\n\nargument worked.” Id. at 70.\n\n But, Oklahoma counters, “[t]hat is far too speculative a basis to find that the\n\nprosecutor misled the jury into believing it could not consider Petitioner’s mitigating\n\ncircumstances.” Appellee’s Response Br. at 93. We agree. Determining culpability is\n\na big part of the jury’s job at sentencing. All the jury note shows is that the jury read\n\nthe instruction and had a question: What does legal culpability mean?\n\n Nor do we find persuasive Cuesta-Rodriguez’s reliance on Hooks v. Workman\n\n(Hooks I), 606 F.3d 715, 743 (10th Cir. 2010). In that case, we found a jury note to\n\nbe “a singularly clear indication” that prosecutorial misconduct “did, in fact, mislead\n\nthe jury.” Id. at 745. Cuesta-Rodriguez is right that Hooks I stands for the proposition\n\nthat questions can be relevant indicators of juror misperception. But that doesn’t suggest\n\nthat the OCCA impermissibly erred here. Desiring to know the definition of culpability—\n\na definition central to the jury’s penalty-phase job—doesn’t lead us to believe that the\n\nprosecution led the jury astray. So the note doesn’t show that the OCCA’s conclusions\n\nregarding prosecutorial misconduct were unreasonable.\n\n 50\n\f But Cuesta-Rodriguez makes a couple more arguments that need addressing. He\n\nclaims that because “the type of misconduct at issue . . . invades specific constitutional\n\nrights,” strict scrutiny applies (which the OCCA didn’t use). Appellant’s Opening Br. at\n\n67. Cuesta-Rodriguez’s argument relies on the claim that “[p]rosecutorial misconduct\n\nimpinging a specific right demands strict scrutiny.” Id. at 68 (citing Caldwell v.\n\nMississippi, 472 U.S. 320, 340 (1985)). The specific right here is the right to present\n\nmitigation evidence.\n\n But Cuesta-Rodriguez hasn’t shown that he was denied his right to present\n\nmitigation evidence. Indeed, Cuesta-Rodriguez presented substantial mitigation evidence\n\nduring his trial. See Original R. vol. VII at 1285–88 (listing sixteen mitigating\n\ncircumstances ranging from Cuesta-Rodriguez’s Cuban emigration to his successful work\n\nhistory and strong familial relationships). So he has failed to make the threshold showing.\n\n Moreover, Oklahoma counters Cuesta-Rodriguez’s argument by pointing out that\n\nno clearly established law supports Cuesta-Rodriguez’s proposition that the prosecutorial\n\nmisconduct here required strict-scrutiny review. We agree.30\n\n Cuesta-Rodriguez relies on Paxton v. Ward, 199 F.3d 1197, 1217–18 (10th Cir.\n\n1999), to prove his point. In Paxton, we noted:\n\n [T]his court has drawn an important distinction between an ordinary claim\n of prosecutorial misconduct, which warrants habeas relief only when the\n entire proceeding is rendered fundamentally unfair, and a claim that the\n\n 30\n So we don’t address Oklahoma’s proposed alternative ground for\naffirmance—that, “assuming that the OCCA was required to apply strict scrutiny\nunder clearly established federal law, this Court must presume that the OCCA did\nso.” Appellee’s Response Br. at 95 n.27.\n\n 51\n\f misconduct effectively deprived the defendant of a specific constitutional\n right, which may be the basis for habeas relief without proof that the entire\n proceeding was unfair.\n\n199 F.3d at 1217. But as we made clear when addressing exactly this issue in Littlejohn v.\n\nTrammell, our past decisions can’t create clearly established law for AEDPA purposes.\n\nSee 704 F.3d 817, 838 n.9 (10th Cir. 2013) (“It goes without saying, however, that\n\nPaxton cannot supply clearly established federal law to support [the petitioner’s]\n\nclaim.”).\n\n Cuesta-Rodriguez also cites two Supreme Court cases in support of his claim that\n\nbecause the prosecutorial statements infringed a constitutional right, the OCCA ought to\n\nhave applied strict scrutiny. See Appellant’s Opening Br. at 67–68 (citing Caldwell, 472\n\nU.S. at 340; and Donnelly, 416 U.S. at 643). Neither proves his point. In Donnelly,\n\naddressing prosecutorial-misconduct claims, the Supreme Court stuck with a\n\nfundamental-fairness analysis. See 416 U.S. at 643 (“When specific guarantees of the Bill\n\nof Rights are involved, [the Supreme Court] has taken special care to assure that\n\nprosecutorial conduct in no way impermissibly infringes them.”). And Caldwell\n\ndistinguished Donnelly, concluding that in Caldwell, “the prosecutor’s argument sought\n\nto give the jury a view of its role in the capital sentencing procedure that was\n\nfundamentally incompatible with the Eighth Amendment[].” Caldwell, 472 U.S. at 340.\n\nSo there, the Supreme Court reversed (without clarity as to the proper standard of\n\nreview). But the prosecutors’ stray comments here are a far cry from those facts. Cuesta-\n\n\n\n\n 52\n\fRodriguez hasn’t provided any sufficiently similar Supreme Court case to prove his\n\npoint.31\n\n Last, Cuesta urges us to look at the OCCA’s decision in Harris v. Oklahoma, 164\n\nP.3d 1103 (Okla. Crim. App. 2007), suggesting that the OCCA acted unreasonably in\n\nfinding no prosecutorial error here after it concluded in Harris that the instruction was\n\nexploitable and that “the kind of prosecutorial argument made here exploited the statutory\n\nlanguage improperly.” Appellant’s Opening Br. at 66 (citing Harris, 164 P.3d at 1113).\n\nBut the relevant inquiry is whether the OCCA acted contrary to Supreme Court\n\nprecedent, not its own, so we swiftly reject the argument. No potential inconsistency\n\nbetween the two cases allows this court to grant Cuesta-Rodriguez relief. See Lockyer v.\n\nAndrade, 538 U.S. 63, 71 (2003) (“[T]he only question that matters under § 2254(d)(1)\n\n[is] whether a state court decision is contrary to, or involved an unreasonable application\n\nof, clearly established federal law.” (citing Weeks v. Angelone, 528 U.S. 225 (2000))).\n\n And Cuesta-Rodriguez ignores the distinguishing facts between Harris and this\n\ncase. In Harris, the OCCA found a prosecutor’s comments that “told jurors not to\n\nconsider [the defendant’s] mitigating evidence” improper. 164 P.3d at 1113. But\n\n“[u]nlike Harris, . . . the prosecutor in this case did not urge the jury to categorically\n\n\n 31\n And in Gipson v. Jordan, we noted that the circuits diverge in their\ninterpretation of “the standard for evaluating . . . prosecutorial misconduct.” 376 F.3d\n1193, 1197 (10th Cir. 2004); see also id. (“Generally, improper prosecutorial remarks\nwill not warrant federal habeas relief unless the remark ‘so infected the trial with\nunfairness as to make the resulting conviction a denial of due process.’” (quoting\nDonnelly, 416 U.S. at 643)). After so noting, we declined to address the issue, further\nhighlighting the lack of clarity on the issue, which prevents relief here.\n\n 53\n\fdisregard the proffered mitigation evidence, but instead argued that the evidence offered\n\nin mitigation did not support an inference of reduced culpability.” Cuesta-Rodriguez, 241\n\nP.3d at 243. And despite “the consistent misuse of the language in th[e] instruction” in\n\nHarris, the OCCA ultimately concluded that “[t]he prosecutor’s improper argument on\n\nthis issue was cured by further argument and instruction.” Harris, 164 P.3d at 1114.\n\nThus, Cuesta-Rodriguez’s “reliance on Harris [wa]s misplaced.” Hanson, 797 F.3d at\n\n850.\n\n B. Was the Error Harmless?\n\n We next review whether the OCCA acted contrary to established federal law in\n\nfinding the first guilt-trip comment harmless.\n\n The OCCA concluded that none of the guilt-trip comments “were verdict\n\ndeterminative” and concluded that “given the strength of the evidence supporting\n\nimposition of the death penalty, they were harmless.” Cuesta-Rodriguez, 241 P.3d at\n\n244. In doing so, the OCCA referenced the statements’ impact on the trial as a whole.\n\nId. And, earlier in the opinion, the OCCA laid out in detail the evidence supporting\n\nthe jury’s determination that two aggravating circumstances (heinousness and\n\ncontinuing risk to society) existed. Id. at 237–39. The first guilt-trip comment didn’t\n\ndeny Cuesta-Rodriguez his right to a fundamentally fair trial. And Cuesta-Rodriguez\n\nprovides us no federal-law basis to reject the OCCA’s conclusion that the comment,\n\nthough disfavored, was harmless.\n\n Cuesta-Rodriguez also argues that the OCCA’s harmlessness conclusion was\n\ncontrary to or an unreasonable application of Chapman v. California, 386 U.S. 18\n\n 54\n\f(1967), because “the OCCA failed to find the error was harmless beyond a reasonable\n\ndoubt.”32 Appellant’s Opening Br. at 59. But the OCCA stated plainly that it analyzed\n\n“the context of the entire trial.” Cuesta-Rodriguez, 241 P.3d at 243. Here, as in\n\nHanson, “we find it hard to imagine that the jurors thought they were prohibited from\n\nconsidering any of the mitigating evidence they heard at the resentencing hearing.” 797\n\nF.3d at 852 (citing Boyde, 494 U.S. at 378–86). Thus, we can’t conclude that the OCCA’s\n\ndetermination that the guilt-trip comment was harmless was contrary to established\n\nfederal law.\n\nIV. Cumulative Error\n\n This leaves us with Cuesta-Rodriguez’s claim of cumulative error. He argues that\n\neven if each individual error was harmless, the cumulative effect of the errors impacted\n\nthe penalty-phase verdict. Cuesta-Rodriguez highlights three errors to include in the\n\ncumulative analysis: (1) the ineffective-assistance-of-counsel claim, (2) the prosecutorial-\n\nmisconduct errors described above, and (3) the Confrontation Clause error the OCCA\n\ndetermined was harmless.\n\n The OCCA denied Cuesta-Rodriguez’s cumulative-error claim on direct appeal,\n\nconcluding that while “Cuesta-Rodriguez’s trial was not error free, the errors do not\n\nrequire relief because when considered in the aggregate, they did not render his trial\n\nfundamentally unfair, taint the jury’s verdict, or render the sentencing unreliable.”\n\n\n\n 32\n Oklahoma urges us to find this argument waived because it wasn’t raised at\nthe district court. But we assume we can address it.\n\n 55\n\fCuesta-Rodriguez, 241 P.3d at 246. Thus, the OCCA concluded that “[a]ny errors were\n\nharmless beyond a reasonable doubt, individually and cumulatively.” Id.\n\n “In the federal habeas context, a cumulative-error analysis aggregates all\n\nconstitutional errors found to be harmless and analyzes whether their cumulative effect\n\non the outcome of the trial is such that collectively they can no longer be determined to\n\nbe harmless.”33 Cole v. Trammell, 755 F.3d 1142, 1177 (10th Cir. 2014) (quoting\n\nAlverson v. Workman, 595 F.3d 1142, 1162 (10th Cir. 2010)). “The cumulative-error\n\nanalysis applies where there are two or more actual errors. It does not apply, however, to\n\nthe cumulative effect of non-errors.” Smith, 824 F.3d at 1255 (quoting United States v.\n\nFranklin-El, 555 F.3d 1115, 1128 (10th Cir. 2009)). To receive habeas relief, Cuesta-\n\nRodriguez must show that “the cumulative effect of the errors determined to be harmless\n\nhad a ‘substantial and injurious effect or influence in determining the jury’s verdict.’”\n\nHanson, 797 F.3d at 852 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).\n\n We first analyze each of Cuesta-Rodriguez’s proposed errors to determine whether\n\nthe error should be included in our cumulative-error analysis.\n\n\n\n\n 33\n “[F]or purposes of possible en banc or certiorari review,” Oklahoma argues that\nour “reliance on general principles of ‘the right to a fair trial and due process’” in\nestablishing our cumulative-error jurisprudence “is improper.” Appellee’s Br. at 97 n.28\n(quoting Hanson, 797 F.3d at 852 n.16). As Oklahoma rightly acknowledges, our\nprecedent forecloses this argument. See Smith v. Duckworth, 824 F.3d 1233, 1255 (10th\nCir. 2016) (rejecting the argument that because “no clearly established federal law\nrecognizes cumulative error as a ground for habeas relief,” AEDPA bars the use of\ncumulative error analysis). We address this argument no further in this opinion.\n\n 56\n\f A. Ineffective Assistance\n\n Oklahoma argues that this court cannot rely on procedurally defaulted claims in\n\nconsidering a cumulative-error claim. We agree.34 “[I]n a cumulative error analysis, a\n\ncourt . . . may not consider claims that are procedurally defaulted.” Ray v. Simmons, 125\n\nF. App’x 943, 946–47 (10th Cir. 2005); see also Hughes v. Dretke, 412 F.3d 582, 597\n\n(5th Cir. 2005) (“Meritless claims or claims that are not prejudicial [or claims that are\n\nprocedurally barred] cannot be cumulated.” (alteration in original) (quoting Westley v.\n\nJohnson, 83 F.3d 714, 726 (5th Cir. 1996))). So Cuesta-Rodriguez’s ineffective-\n\nassistance claims, having been ruled procedurally barred, have no place in our\n\ncumulative-error analysis.\n\n B. Confrontation Clause\n\n Oklahoma argues that because Cuesta-Rodriguez didn’t receive a COA on the\n\nunderlying Confrontation Clause claim, we can’t consider it in the cumulative error\n\nanalysis.\n\n We disagree. The COA explicitly included the Confrontation Clause claim as one\n\nto be included in the cumulative-error analysis: We stated that “harmless constitutional\n\nerrors found by the Oklahoma Court of Criminal Appeals in appellant’s direct appeal\n\nconcerning the admission of autopsy diagrams and the testimony of Dr. Gofton” were to\n\nbe included. Order at 2, Cuesta-Rodriguez v. Carpenter, No. 16-6315, (10th Cir. Apr. 10,\n\n\n 34\n Oklahoma also argues that ineffective-assistance claims don’t factor into\ncumulative error at all. But it recognizes that this argument has been precluded by\nour prior decisions.\n\n 57\n\f2017). True, we can’t simply adopt the OCCA’s constitutional conclusions. But a lack of\n\nexplicit mention of the merits in our COA doesn’t mean we can’t reach them. The COA\n\ndid what it intended—flagged the potential Confrontation Clause error as one this court\n\ncould look at in its cumulative error analysis. See Appellant’s Opening Br. at 77 n.40\n\n(“Cuesta was granted a certificate of appealability on the cumulative penalty prejudice\n\nflowing from [the Confrontation Clause] violation.”).\n\n Oklahoma’s reliance on Young v. Sirmons, 551 F.3d 942, 972–73 (10th Cir.\n\n2008), for the contrary position is unpersuasive. See Appellee’s Response Br. at 100\n\n(describing Young as standing for the proposition that “a cumulative error claim\n\ncannot encompass a substantive claim for which a petitioner does not have a COA”).\n\nIn Young, we rejected a petitioner’s argument that we should cumulatively assess all\n\nof the trial errors found by the OCCA where: (1) those errors weren’t mentioned in\n\nthe COA35 and (2) some of the errors the petitioner sought to cumulate involved\n\nstate-law issues. 551 at 973. So this case is clearly distinguishable: (1) the COA\n\nexplicitly mentions the Confrontation Clause error and (2) the Confrontation Clause\n\n\n 35\n Indeed, that COA (granted by the district court) granted four of the\npetitioner’s claims: “(1) ineffective assistance of trial counsel for failing to\nadequately investigate and present mitigation evidence for the sentencing stage;\n(2) improper victim impact evidence; (3) improper admission of Petitioner’s ‘fish\nblood’ statement; (4) cumulative impact of errors.” Order Granting Certificate of\nAppealability at 2, Young v. Sirmons, No. 00-CV-310-JHP-PJC (N.D. Okla. Sept. 21,\n2007). Thus, the COA didn’t mention in any form the specific errors the petitioner\nwanted to cumulate. See Young, 551 F.3d at 973 (“[N]either the district court nor we\nhave granted a COA with respect to those issues.”). And, the simplest read of the\nCOA is that the “errors” in number four refer back to the earlier listed errors, not\nunnamed errors.\n\n 58\n\fissue is squarely one of federal, not state, law. So we can look at the Confrontation\n\nClause issue in the cumulative-error analysis.\n\n It’s worth noting, though, that no Supreme Court case has squarely resolved\n\nthe issue of whether the Confrontation Clause applies at penalty-stage proceedings.\n\nSee Carter v. Bigelow, 787 F.3d 1269, 1294 (10th Cir. 2015) (“The Supreme Court\n\nhas never held that the Confrontation Clause applies at capital sentencing.”); Wilson\n\nv. Sirmons, 536 F.3d 1064, 1111–12 (10th Cir. 2008) (“[W]e have recently stated that it is\n\n‘far from clear’ whether the Confrontation Clause even applies at capital sentencing\n\nproceedings.” (quoting United States v. Barrett, 496 F.3d 1079, 1099 (10th Cir. 2007))).\n\nBut that doesn’t preclude our inclusion of the error in our determination whether, in the\n\naggregate, the various errors denied Cuesta-Rodriguez a fair trial.36 See Littlejohn, 704\n\nF.3d at 843 (“Allowing Mr. Littlejohn maximum latitude in addressing his claim, we\n\nassume without deciding that the Confrontation Clause applies in capital sentencing\n\nproceedings.”).\n\n\n\n\n 36\n That the OCCA relied solely on state-law cases doesn’t control our analysis.\nSee Early v. Packer, 537 U.S. 3, 8 (2002) (rejecting the contention that a state court’s\nfailing to cite to federal law suggests an AEDPA problem: “Avoiding these pitfalls\n[requiring AEDPA reversal] does not require citation of our cases—indeed, it does\nnot even require awareness of our cases, so long as neither the reasoning nor the\nresult of the state-court decision contradicts them.”).\n\n\n 59\n\f Having concluded we can look at it, we assume without deciding that the\n\nConfrontation Clause error found by the OCCA was indeed error, and plug it into our\n\ncumulative-error analysis.37\n\n C. Prosecutorial Misconduct\n\n Having concluded earlier that only one applicable error survives—the initial guilt-\n\ntrip comment, that’s the only prosecutorial misconduct we include in our analysis.\n\n D. Cumulative-Error Analysis\n\n To start, Oklahoma argues that because the guilt-trip comment is the only error we\n\ncan consider, there aren’t multiple errors to cumulate. True, a cumulative-error analysis\n\nrequires more than one error to aggregate. But because we assume, without deciding, that\n\nthe Confrontation Clause error was error, we have more than one error to address, and so\n\nwe proceed to the cumulative-error analysis.\n\n AEDPA deference controls our analysis. Cuesta-Rodriguez asks that we include\n\nother errors in our cumulative-error analysis—and he then claims that adding more\n\nerrors means we are evaluating a claim that the OCCA didn’t address on the merits,\n\nso we should apply de novo review. See Appellant’s Opening Br. at 77 (“This Court’s\n\nreview for cumulative error is not under so-called AEDPA deference but rather is de\n\nnovo.”); Hooks II, 689 F.3d at 1163–64. But we are evaluating the same two errors that\n\n\n\n 37\n OCCA’s conclusion regarding the Confrontation Clause error coded it as\nboth a guilt-phase and a penalty-phase error. Cuesta-Rodriguez, 241 P.3d at 231. On\nappeal, Cuesta-Rodriguez refers only to the penalty-phase component of the error.\n\n\n 60\n\fthe OCCA analyzed and so will uproot the OCCA’s decision only if it was contrary\n\nto or an unreasonable application of established federal law.38\n\n We have already determined that the OCCA’s conclusion that the prosecutorial-\n\nmisconduct error was harmless wasn’t unreasonable. All that’s left to determine is\n\nwhether the Confrontation Clause error combined with the prosecutorial misconduct error\n\ndenied Cuesta-Rodriguez a right to a fundamentally fair trial. In doing so, we are mindful\n\nthat cumulative error does not require any synergistic effect. Grant v. Trammel, 727 F.3d\n\n1006, 1026 (10th Cir. 2013).\n\n Even so, recognizing that Cuesta-Rodriguez claims such a synergy, Oklahoma\n\npoints out that he fails to explain how the Confrontation Clause error would have any\n\nsynergistic effect with the prosecutorial error such that it denied him a fundamentally fair\n\ntrial. Indeed, Cuesta-Rodriguez acknowledges that the Confrontation Clause violation\n\nwas relatively minor. See Appellant’s Reply Br. at 37 (“[T]he Confrontation Clause\n\nviolation is not the strongest cumulative error element nor the one on which Mr. Cuesta\n\nmost relies.”).\n\n All Cuesta-Rodriguez tells us on this point is that the Confrontation Clause error\n\ncould have affected the jury’s determination of the heinous, atrocious, or cruel\n\n\n\n 38\n Cuesta-Rodriguez also argues that the OCCA “relied in part on an\nunreasonably erroneous conclusion the Confrontation Clause error was harmless\nbecause sufficient other evidence existed.” Appellant’s Opening Br. at 77 n.41 (citing\nCuesta-Rodriguez, 241 P.3d at 231). Finding error harmless based on the weight of\nother evidence is exactly the kind of determination we leave undisturbed under\nAEDPA. Cuesta-Rodriguez doesn’t explain how this conclusion was unreasonable.\n\n 61\n\faggravator. On that, the OCCA concluded that ample other evidence in the record\n\nshowed that Fisher consciously experienced physical and mental suffering before her\n\ndeath. Cuesta-Rodriguez, 241 P.3d at 231. The OCCA pointed to other testimony (that of\n\npolice officers and Chacon) that showed evidence of a struggle “for at least seven\n\nminutes until Cuesta-Rodriguez delivered the fatal shot to her left eye.” Id. From there,\n\nthe OCCA concluded that even without the medical examiner’s testimony, “the jury\n\ncould have reasonably concluded that Fisher consciously experienced great physical and\n\nmental suffering.” Id.\n\n The OCCA’s conclusions weren’t unreasonable. As the prosecutor said to the jury\n\nin discussing Fisher’s suffering, “In this case we don’t even have to take just [the medical\n\nexaminer’s] word for it. We know [the first shot] wasn’t fatal.”39 Trial Tr. vol. VII at\n\n1279:6–8. The prosecutor went on to reference Cuesta-Rodriguez’s statement to police\n\nand testimony from officers on the scene who heard Fisher’s “blood-curdling scream.” Id.\n\nat 1279:12; see also id. (discussing Fisher’s behavior during her last minutes of life). So\n\nthe OCCA’s conclusion that the jury needn’t have relied on the medical examiner’s\n\ntestimony stands.\n\n The first guilt-trip comment concerned the defense’s mitigation evidence. See\n\nAppellant’s Opening Br. at 75 (“The prosecution minimized and sought to side step\n\nmitigation by falsely describing it as a guilt trip.”). This error, though adjudged harmless,\n\n\n\n 39\n The prosecution did, however, refer to the medical examiner’s testimony\nagain later.\n\n 62\n\fwas weightier than the Confrontation Clause error. Indeed, the OCCA cautioned\n\n“prosecutors in future cases to keep their argument focused on the evidence and to avoid\n\nmaking comments that do nothing but denigrate the defense.” Cuesta-Rodriguez, 241\n\nP.3d at 244.\n\n Combining the two errors though, we can’t see how the admittedly minor error\n\nperhaps influencing the jury’s conclusion that the crime was particularly heinous,\n\natrocious, or cruel could have combined with the guilt-trip comment on mitigation to\n\nviolate Cuesta-Rodriguez’s constitutional rights. The two errors relate to different jury\n\nfindings.\n\n Cuesta-Rodriguez hasn’t persuaded us that the combined errors led to a trial that\n\nwasn’t “fundamentally fair.” Cole, 755 F.3d at 1177. So Cuesta-Rodriguez’s cumulative-\n\nerror claim fails.\n\n CONCLUSION\n\n For the above reasons, we affirm the district court’s judgment.\n\n\n\n\n 63", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370351/", "author_raw": "PHILLIPS, Circuit Judge."}]}	TYMKOVICH	HOLMES	PHILLIPS	1	{"TYMKOVICH": ", Chief", "HOLMES": ", Circuit", "PHILLIPS": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593098/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,901	Carlos CUESTA-RODRIGUEZ v. Mike CARPENTER, Warden, Oklahoma State Penitentiary	Cuesta-Rodriguez v. Carpenter	2019-02-22	No. 16-6315	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Holmes, Phillips, Tymkovich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415332/", "author_raw": ""}]}	HOLMES	PHILLIPS	TYMKOVICH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443901/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,469	Darlene COLLINS ; Bail Bond Association of New Mexico; Richard Martinez; Bill Sharer; Craig Brandt; Carl Trujillo, Plaintiffs-Appellants, v. Charles W. DANIELS ; Edward L. Chavez; Petra Jimenez Maez; Barbara J. Vigil ; Judith K. Nakamura; New Mexico Supreme Court; Nan Nash; The Second Judicial Court ; Henry A. Alainz; Robert L. Padilla; Bernalillo County Metropolitan Court; James Noel; Bernalillo County; Board of County Commissioners, County of Bernalillo, Defendants-Appellees.	Collins v. Daniels	2019-02-25	17-2217; 18-2045	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Briscoe, Matheson, Bacharach", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 25, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nDARLENE COLLINS; BAIL BOND\nASSOCIATION OF NEW MEXICO;\nRICHARD MARTINEZ; BILL SHARER;\nCRAIG BRANDT; CARL TRUJILLO,\n\n Plaintiffs - Appellants,\n\nv. Nos. 17-2217 and 18-2045\n\nCHARLES W. DANIELS; EDWARD L.\nCHAVEZ; PETRA JIMENEZ MAEZ;\nBARBARA J. VIGIL; JUDITH K.\nNAKAMURA; NEW MEXICO\nSUPREME COURT; NAN NASH; THE\nSECOND JUDICIAL COURT; HENRY\nA. ALAINZ; ROBERT L. PADILLA;\nBERNALILLO COUNTY\nMETROPOLITAN COURT; JAMES\nNOEL; BERNALILLO COUNTY;\nBOARD OF COUNTY\nCOMMISSIONERS, COUNTY OF\nBERNALILLO,\n\n Defendants - Appellees.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 1:17-CV-00776-RJ-KK)\n _________________________________\n\nRichard Westfall, Hale Westfall, Denver, Colorado (A. Blair Dunn and Dori E. Richards,\nWestern Agriculture, Resource and Business Advocates, LLP, Albuquerque, New\nMexico, with him on the briefs), appearing for Appellants.\n\fAri Biernoff, Office of the New Mexico Attorney General, Santa Fe, New Mexico,\nappearing for Appellees Charles W. Daniels, Edward L. Chavez, Petra Jimenez Maez,\nBarbara J. Vigil, Judith K. Nakamura, the New Mexico Supreme Court, Nan Nash, the\nSecond Judicial Court, Henry Alainz, Robert Padilla, the Bernalillo County Metropolitan\nCourt, and James Noel.\n\nBrandon Huss, The New Mexico Association of Counties, Santa Fe, New Mexico, on the\nbrief for Appellee County Commissioners of the County of Bernalillo.\n _________________________________\n\nBefore BRISCOE, MATHESON, and BACHARACH, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n This is a § 1983 case that challenges the constitutionality of New Mexico’s\n\nsystem of bail. Plaintiffs-Appellants Darlene Collins, the Bail Bond Association of\n\nNew Mexico (“BBANM”), and five New Mexico state legislators (the “Legislator\n\nPlaintiffs”) allege that New Mexico’s system of bail violates the Excessive Bail\n\nClause of the Eighth Amendment, as well as the procedural and substantive\n\ncomponents of the Due Process Clause of the Fourteenth Amendment.1 Plaintiffs\n\nfurther allege that the rules governing New Mexico’s system of bail were\n\npromulgated by the New Mexico Supreme Court in violation of the New Mexico\n\nConstitution. Defendants-Appellees are the New Mexico Supreme Court and its\n\njustices; the Second Judicial District Court of New Mexico, its chief judge, and its\n\n\n\n\n 1\n Plaintiffs have withdrawn their claim that New Mexico’s system of bail\nviolates the Fourth Amendment’s prohibitions against unreasonable search and\nseizure. Aplt. Reply. Br. at 14.\n\n 2\n\fcourt executive officer; and the Bernalillo County Metropolitan Court, its chief\n\njudge, and its court executive officer.2\n\n Defendants moved to dismiss, arguing that Plaintiffs lack standing, Defendants\n\nare immune from suit, and Plaintiffs have failed to state a claim. Defendants also\n\nmoved for Rule 11 sanctions on the basis that Plaintiffs’ attorneys filed suit without\n\nadequately researching the viability of Plaintiffs’ claims. Plaintiffs then moved for\n\nleave to amend their complaint to add a claim that Defendants’ Rule 11 motion\n\nviolated Plaintiffs’ First Amendment rights.\n\n The district court granted Defendants’ motion to dismiss because it found that\n\nBBANM and the Legislator Plaintiffs lack standing, Defendants are immune from\n\nsuit, and Plaintiffs failed to state a claim. The district court also granted Defendants’\n\nmotion for sanctions and denied Plaintiffs’ motion to amend. Plaintiffs timely\n\nappealed.3 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.\n\n I\n\nA. Legal Background\n\n As of 2014, when bail hearings were held in New Mexico, judges commonly\n\nset the amount of any secured bail bond based “solely on the nature of [a\n\n 2\n Plaintiffs have withdrawn their appeal from the dismissal of their claims\nagainst the Board of County Commissioners of the County of Bernalillo. Aplt.\nReply. Br. at 19 n.10.\n 3\n Appeal No. 17-2217 concerns the dismissal of Plaintiffs’ case and denial of\nPlaintiffs’ motion for leave to amend. Appeal No. 18-2045 concerns the imposition\nof Rule 11 sanctions. The appeals have been consolidated for procedural purposes.\nDkt. No. 10546176.\n\n 3\n\fdefendant’s] charged offense without regard to individual determinations of flight\n\nrisk or continued danger to the community.” State v. Brown, 338 P.3d 1276, 1292\n\n(N.M. 2014). The New Mexico Supreme Court held that this practice was\n\nimpermissible because “[n]either the [New Mexico] Constitution nor [New Mexico’s]\n\nrules of criminal procedure permit[ted] a judge to base a pretrial release decision\n\nsolely on the severity of the charged offense.” Id. The Court explained that\n\n“[s]etting money bail based on the severity of the crime leads to either release or\n\ndetention, determined by a defendant’s wealth alone instead of being based on the\n\nfactors relevant to a particular defendant’s risk of nonappearance or reoffense in a\n\nparticular case.” Id.\n\n In March 2016, the New Mexico legislature proposed amending the state\n\nconstitution to change how the state administers bail. S.J. Res. 1, 52d Leg., 2d Sess.\n\n(N.M. 2016). The amendment was ratified by popular referendum in November\n\n2016. The relevant provision now reads:\n\n All persons shall, before conviction, be bailable by sufficient\n sureties, except for capital offenses when the proof is evident or the\n presumption great and in situations in which bail is specifically\n prohibited by this section. Excessive bail shall not be required, nor\n excessive fines imposed, nor cruel and unusual punishment inflicted.\n\n Bail may be denied by a court of record pending trial for a\n defendant charged with a felony if the prosecuting authority requests\n a hearing and proves by clear and convincing evidence that no\n release conditions will reasonably protect the safety of any other\n person or the community. An appeal from an order denying bail\n shall be given preference over all other matters.\n\n A person who is not detainable on grounds of dangerousness\n nor a flight risk in the absence of bond and is otherwise eligible for\n\n 4\n\f bail shall not be detained solely because of financial inability to post\n a money or property bond. A defendant who is neither a danger nor\n a flight risk and who has a financial inability to post a money or\n property bond may file a motion with the court requesting relief\n from the requirement to post bond. The court shall rule on the\n motion in an expedited manner.\n\nN.M. Const. art. II, § 13.\n\n In July 2017, the Supreme Court of New Mexico revised the state’s Rules of\n\nCriminal Procedure to implement the recent constitutional amendment (the “2017\n\nRules”). The relevant provisions state:\n\n Pending trial, any defendant eligible for pretrial release under\n Article II, Section 13 of the New Mexico Constitution, shall be\n ordered released pending trial on the defendant’s personal\n recognizance or upon the execution of an unsecured appearance\n bond in an amount set by the court, unless the court makes written\n findings of particularized reasons why the release will not\n reasonably ensure the appearance of the defendant as required. The\n court may impose non-monetary conditions of release . . . , but the\n court shall impose the least restrictive condition or combination of\n conditions that will reasonably ensure the appearance of the\n defendant as required and the safety of any other person or the\n community.\n\nN.M. R. Crim. P. 5-401(B).\n\n If the court makes findings of the reasons why release on\n personal recognizance or unsecured appearance bond, in addition to\n any non-monetary conditions of release, will not reasonably ensure\n the appearance of the defendant as required, the court may require a\n secured bond for the defendant’s release.\n\nN.M. R. Crim. P. 5-401(E).\n\n The 2017 Rules were meant to “clarify that the amount of [a] secured bond\n\nmust not be based on a bond schedule, i.e., a predetermined schedule of monetary\n\namounts fixed according to the nature of the charge.” N.M. R. Crim. P. 5-401 cmt.\n\n 5\n\f(referring to N.M. R. Crim. P. 5-401(E)(1)(d)). “Instead, [a] court must consider\n\n[each] individual defendant’s financial resources and must set secured bond at the\n\nlowest amount that will reasonably ensure the defendant’s appearance in court after\n\nthe defendant is released.” Id. (referring to N.M. R. Crim. P. 5-401(E)(1)(a)–(c)).\n\n Depending on a defendant’s custodial status, a “district court shall conduct a\n\nhearing . . . and issue an order setting the conditions of release as soon as practicable,\n\nbut in no event later than” three to five “days after the date of arrest.” N.M. R. Crim.\n\nP. 5-401(A)(1). “The chief judge of [each] district court may [also] designate by\n\nwritten court order responsible persons to implement . . . pretrial release procedures\n\n. . . .” N.M. R. Crim. P. 5-401(N). Per these procedures, “[a] designee shall release a\n\ndefendant from custody prior to the defendant’s first appearance before a judge if the\n\ndefendant,” id., (1) “has been arrested and detained for [most] . . . misdemeanor[s]”\n\nand other “[m]inor offenses,” (2) “qualifies for pretrial release based on a risk\n\nassessment and a pretrial release schedule approved by the Supreme Court,” or (3)\n\n“qualifies for pretrial release under a local release on recognizance program that\n\nrelies on individualized assessments of arrestees and has been approved by order of\n\nthe Supreme Court,” N.M. R. Crim. P. 5-408(B)–(D). When a defendant is released\n\npursuant to Rule 5-408, he is “released on personal recognizance on [his] . . . promise\n\nto appear and subject to . . . standard conditions of release.” N.M. R. Crim. P. Form\n\n9-302.\n\n\n\n\n 6\n\fB. Factual Background\n\n Two additional events underlie Plaintiffs’ claims. First, in late 2016, the\n\nSecond Judicial District Court of New Mexico and the Bernalillo County\n\nMetropolitan Court—acting through their chief judges and court executive officers—\n\nsigned a memorandum of understanding with the Laura and John Arnold Foundation,\n\nallowing the courts to use the Arnold Tool to perform risk assessments of criminal\n\ndefendants prior to their bail hearings. App. Vol. I at 29, 65–72. The Arnold Tool,\n\nformally known as the Public Safety Assessment, “considers nine factors to measure\n\nthe risk an eligible defendant will fail to appear in court and the risk he or she will\n\nengage in new criminal activity while on release.” Holland v. Rosen, 895 F.3d 272,\n\n281 (3d Cir. 2018); see also Laura and John Arnold Foundation, Public Safety\n\nAssessment - What is the PSA, https://www.psapretrial.org/about/what-is-psa (last\n\nvisited February 4, 2019). Plaintiffs allege that “[t]he use of the Arnold Tool\n\nresult[s] in persons accused of a crime being denied the opportunity to secure their\n\npre-trial release through a secured bond as the tool requires the court[,] thr[ough] an\n\nentirely opaque program[,] to assess non-monetary conditions of release that infringe\n\nupon a person’s pretrial liberty.” App. Vol. I at 29.\n\n Second, on Saturday, July 1, 2017—the first day when the 2017 Rules were in\n\neffect—Plaintiff Darlene Collins was arrested for “aggravated assault arising out of a\n\ndomestic dispute,” id. at 32, a fourth degree felony, N.M. Stat. § 30-3-2. Plaintiffs\n\nallege that, prior to the effective date of the 2017 Rules, “the jailhouse could have set\n\na reasonable, non-excessive, monetary bail to ensure . . . Collin’s [sic] appearance at\n\n 7\n\farraignment and then for trial.” App. Vol. I at 33. But the jailhouse “could not,\n\nunder the new Supreme Court Rules[,] consider releasing . . . Collins subject to\n\nmonetary bail,” even though Collins’s “family was prepared to use their own\n\nfinancial resources with the assistance of a member of . . . BBANM to pay the\n\nrequired amount for pre-arraignment release.” Id. Instead, “Collins was incarcerated\n\nfor almost 5 full days” before her arraignment in Bernalillo County Metropolitan\n\nCourt on July 5, 2017. Id. at 33, 272–75. “[N]o conditions were [ultimately]\n\nimposed upon her release post-arraignment and pre-trial other than a verbal order\n\nfrom the Court that she was being released, but she was not allowed to return to her\n\nhome.”4 Id. at 33.\n\nC. Procedural Background\n\n Plaintiffs Collins, BBANM,5 and the Legislator Plaintiffs brought this case as\n\na putative class action on behalf of all New Mexico criminal defendants whose bail\n\nhearings have been or will be conducted using the 2017 Rules or the Arnold Tool.\n\nId. at 36. Plaintiffs allege that the 2017 Rules and the Arnold Tool violate the\n\nExcessive Bail Clause of the Eighth Amendment “by permitting judges to consider\n\n 4\n Plaintiffs’ allegation that Collins was not allowed to return home is not fully\nsupported by documents attached to their motion for a preliminary injunction. In a\nsworn declaration, Collins stated that she “was released on [her] own recognizance\nwith no conditions . . . .” App. Vol. I at 122–23 (emphasis added). Moreover, the\norder setting Collins’s conditions of release does not prohibit Collins from returning\nhome. Id. at 274–75.\n 5\n BBANM “is a professional membership organization comprised of bail bond\nbusinesses licensed to do business and operating throughout New Mexico.” App.\nVol. I at 23.\n\n 8\n\fsecured bond only when it is determined that no other conditions of release will\n\nreasonably assure the eligible defendant’s appearance in court when required.” Id. at\n\n42. According to Plaintiffs, this “subordinat[ion] [of] secured bond” “effectively\n\ntakes secured bonds off the table as an option” for courts deciding whether to release\n\na defendant pending trial. Id.\n\n Plaintiffs further allege that “Defendants violate the procedural component of\n\nthe Due Process Clause” of the Fourteenth Amendment “[b]y imposing liberty-\n\nrestricting conditions on . . . Collins and other presumptively innocent criminal\n\ndefendants without offering them the historically-required option of non-excessive\n\nmonetary bail.” Id. at 44. Plaintiffs also allege that “Defendants . . . violate\n\nPlaintiffs’ substantive rights under the Due Process Clause [of the Fourteenth\n\nAmendment] because the option of non-excessive bail for a bailable offense is\n\nfundamental to our scheme of ordered liberty and deeply rooted in this Nation’s\n\nhistory and tradition.” Id. (quotation marks and emphasis omitted). Finally,\n\nPlaintiffs allege that the New Mexico Supreme Court exceeded its authority, under\n\nthe New Mexico Constitution, when promulgating the 2017 Rules.6 Id. at 34–35.\n\n Plaintiffs seek damages, a declaration that the 2017 Rules and use of the\n\nArnold Tool are unconstitutional, and an injunction against future use of the 2017\n\nRules and the Arnold Tool. Id. at 47–48. Plaintiffs sued the New Mexico Supreme\n\n 6\n Plaintiffs’ allegation that the New Mexico Supreme Court violated the New\nMexico Constitution when it promulgated the 2017 Rules is not enumerated as a\nclaim in the complaint. See App. Vol. I at 34–35. Nevertheless, the parties and the\ndistrict court treated it as a claim.\n\n 9\n\fCourt, the Second Judicial District Court, and the Bernalillo County Metropolitan\n\nCourt for declaratory and injunctive relief. Id. at 24–26. Plaintiffs also sued the\n\njustices of the New Mexico Supreme Court, as well as the chief judges and court\n\nexecutive officers of the Second Judicial District Court of New Mexico and the\n\nBernalillo County Metropolitan Court. Id. Plaintiffs sued these defendants in their\n\nindividual capacities for damages and in their official capacities for declaratory and\n\ninjunctive relief. Id.\n\n Defendants moved to dismiss, arguing that Plaintiffs lack standing; sovereign\n\nimmunity bars Plaintiffs’ claims against the courts themselves and the state officials\n\nin their official capacities; legislative immunity bars Plaintiffs’ claims against the\n\nsupreme court justices; judicial immunity bars Plaintiffs’ claims against the state\n\ncourt judges and court executive officers; and Plaintiffs have failed to state a claim.\n\nId. 171–99. While their motion to dismiss was pending, Defendants moved for Rule\n\n11 sanctions. App. Vol. II at 445–58. Defendants argued that they were entitled to\n\nsanctions because Plaintiffs’ counsel pursued unwarranted claims without offering a\n\nreasonable argument to modify existing law on standing or immunity. After being\n\nserved with Defendants’ motion for sanctions, Plaintiffs moved to amend their\n\ncomplaint to add a claim for “violations of the First Amendment [from the] vindictive\n\nprosecution undertaken by” Defendants. Id. at 362. Plaintiffs argued that\n\n“Defendants undertook to threaten and intimidate Plaintiffs into abandoning their\n\nFree Speech and their right of access to the Courts through the service of a\n\n\n\n 10\n\fdefamatory Rule 11 [m]otion directed personally at Plaintiffs’ counsel.” Id. at 361–\n\n62.\n\n The district court granted the motion to dismiss after finding that BBANM and\n\nthe Legislator Plaintiffs lacked standing; that Plaintiffs’ claims against the state\n\ncourts and individual defendants, in their official capacities, are barred by sovereign\n\nimmunity; that Plaintiffs’ claims against the state court judges and court executives,\n\nin their individual capacities, are barred by judicial immunity; that Plaintiffs’ claims\n\nagainst the state supreme court justices, in their individual capacities, are barred by\n\nlegislative immunity; and that Plaintiffs failed to state a claim. The district court\n\ngranted the motion for sanctions because it found that there was no objectively\n\nreasonable basis for Plaintiffs to think that BBANM or the Legislator Plaintiffs had\n\nstanding, or that Plaintiffs could overcome Defendants’ immunities. The district\n\ncourt also found that BBANM and the Legislator Plaintiffs were named as plaintiffs\n\nfor an improper purpose. Finally, the district court denied the motion to amend as\n\nfutile. Plaintiffs timely appealed all three rulings.\n\n II\n\n We review de novo whether Plaintiffs have standing. S. Utah Wilderness All.\n\nv. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). “Each plaintiff must have standing\n\nto seek each form of relief in each claim.” Am. Humanist Ass’n, Inc. v. Douglas Cty.\n\nSch. Dist. RE-1, 859 F.3d 1243, 1250 (10th Cir. 2017) (quoting Bronson v. Swensen,\n\n500 F.3d 1099, 1106 (10th Cir. 2007)).\n\n\n\n 11\n\f “[S]tanding ‘is an essential and unchanging part of the case-or-controversy\n\nrequirement of Article III.’” S. Utah Wilderness All., 707 F.3d at 1153 (quoting\n\nLujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).\n\n To satisfy Article III’s standing requirements, a plaintiff must show:\n “(1) it has suffered an ‘injury in fact’ that is (a) concrete and\n particularized and (b) actual or imminent, not conjectural or\n hypothetical; (2) the injury is fairly traceable to the challenged\n action of the defendant; and (3) it is likely, as opposed to merely\n speculative, that the injury will be redressed by a favorable\n decision.”\n\nId. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,\n\n180–81 (2000)).\n\nA. BBANM\n\n Plaintiffs argue that BBANM has standing because it (1) “has associational\n\nstanding,” Aplt. Br. at 30, and (2) “has third-party standing to assert the\n\nconstitutional rights of potential customers [who will be] denied bail,” id. at 32.7 In\n\n\n\n\n 7\n Plaintiffs further allege that BBANM’s member companies “have been\nseverely [financially] harmed by the drastic reduction in the number of defendants\ngiven the option of jailhouse bonds or secured bonds.” App. Vol. I at 32. This\nechoes Plaintiffs’ argument in district court that the 2017 Rules deprive BBANM’s\nmembers of a “constitutionally protected property interest in engaging in one’s\nchosen profession.” App. Vol. II at 302. But Plaintiffs do not allege a deprivation of\na protected property interest in their First Amended Complaint. Plaintiffs only allege\nviolations of criminal defendants’ rights under the Fourth, Eighth, and Fourteenth\nAmendments. App. Vol. I at 40–47. Therefore, even assuming that BBANM can\nsatisfy Article III’s standing requirements based on its members’ economic injury,\nwe must still examine whether BBANM has standing to assert the constitutional\nrights of criminal defendants. Kowalski v. Tesmer, 543 U.S. 125, 128–29 & n.2\n(2004).\n (continued . . .)\n 12\n\freality, whether BBANM has standing is only a question of third-party standing. “An\n\nassociation has . . . standing” “to raise [the] claims of [its] members” “only if: ‘(a) its\n\nmembers would otherwise have standing to sue in their own right; (b) the interests it\n\nseeks to protect are germane to the organization’s purpose; and (c) neither the claim\n\nasserted nor the relief requested requires the participation of individual members in\n\nthe lawsuit.’” Chamber of Commerce v. Edmonson, 594 F.3d 742, 756 (10th Cir.\n\n2010) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343\n\n(1977)). We need only consider the first prong of associational standing. Because\n\nBBANM’s members are not criminal defendants, they do not possess the Eighth and\n\nFourteenth Amendment rights asserted in Plaintiffs’ complaint. Therefore, like\n\nBBANM itself, BBANM’s members only have standing if they can assert the\n\nconstitutional rights of criminal defendants.\n\n “Ordinarily, a party ‘must assert his own legal rights’ and ‘cannot rest his\n\nclaim to relief on the legal rights . . . of third parties.’” Sessions v. Morales-Santana,\n\n137 S. Ct. 1678, 1689 (2017) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).\n\n“But we recognize an exception where . . . ‘the party asserting the right has a close\n\nrelationship with the person who possesses the right and there is a hindrance to the\n\npossessor’s ability to protect his own interests.’” Id. (alteration omitted) (quoting\n\n\n\n(cont’d)\n BBANM does not argue that it has standing to assert the claim that the 2017\nRules “infringe[] upon the power of the [New Mexico] Legislature to make law.”\nApp. Vol. I at 35.\n\n 13\n\fKowalski, 543 U.S. at 130). Neither BBANM nor its members are eligible for this\n\nexception to the rule against third-party standing.\n\n In Kowalski, two attorneys challenged a state statute that generally prohibited\n\nthe “appointment of appellate counsel for indigents who plead guilty.” 543 U.S. at\n\n128. The plaintiffs alleged that the “statute denied indigents their federal\n\nconstitutional rights to due process and equal protection.” Id. The Supreme Court\n\nheld that “the attorneys [did] not have third-party standing to assert the rights of . . .\n\nindigent defendants denied appellate counsel.” Id. at 134. First, the Court reasoned\n\nthat, because the attorneys sought to assert the rights of “as yet unascertained . . .\n\ncriminal defendants” whose rights would be violated, “[t]he attorneys . . . [did] not\n\nhave a close relationship with their alleged clients; indeed, they [had] no relationship\n\nat all.” Id. at 130–31 (quotation marks omitted). Next, the Court explained “that the\n\nlack of an attorney . . . is [not] the type of hindrance necessary to allow another to\n\nassert the indigent defendants’ rights.” Id. at 132. Proceeding pro se, the indigent\n\ndefendants could assert their constitutional rights on direct appeal and in collateral\n\nproceedings. Id. at 131–32.\n\n Like the attorneys in Kowalski, BBANM and its members lack third-party\n\nstanding. First, BBANM and its members have “no relationship at all,” id. at 131,\n\nwith “potential customers denied bail under” the 2017 Rules and the Arnold Tool,\n\nAplt. Br. at 32. Second, criminal defendants in New Mexico are not hindered in\n\nasserting their own constitutional rights in their own criminal proceedings or in a\n\n§ 1983 suit, as Collins has done here. Plaintiffs argue that criminal defendants are\n\n 14\n\fhindered in asserting their own rights because they need “a third-party willing to\n\nexpend funds to challenge the constitutionality of the” 2017 Rules, especially\n\nbecause criminal defendants subject to pretrial conditions of release “need to prepare\n\nfor their criminal trial[s].” Aplt. Br. at 33–34. But the criminal defendants in\n\nKowalski were not hindered in asserting their constitutional rights even though they\n\nwere proceeding pro se and needed to prepare for their criminal appeals, likely while\n\nin custody. 543 U.S. at 131–32.\n\nB. The Legislator Plaintiffs\n\n “[A] threshold question in the legislator standing inquiry is whether the\n\nlegislator-plaintiffs assert an institutional injury.” Kerr v. Hickenlooper (Kerr II),\n\n824 F.3d 1207, 1214 (10th Cir. 2016). “[I]ndividual legislators may not support\n\nstanding by alleging only an institutional injury.” Id. “[A]n institutional injury\n\nconstitutes some injury to the power of the legislature as a whole rather than harm to\n\nan individual legislator.” Id. “[I]nstitutional injuries . . . do not ‘zero in on any\n\nindividual’” legislator and are “‘widely dispersed’ and ‘necessarily impact all\n\nmembers of a legislature equally.’” Id. (alterations omitted) (quoting Ariz. State\n\nLegislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015)).\n\n Plaintiffs suggest that the Legislator Plaintiffs have standing to challenge the\n\n2017 Rules because the rules represent “an unconstitutional usurpation of\n\n\n\n\n 15\n\f[legislative] power by” the New Mexico Supreme Court.8 Aplt. Br. at 36. In our\n\nview, it is difficult to conceive of a better example of an institutional injury. The\n\ninjury alleged by Plaintiffs “is based on [a] loss of legislative power that necessarily\n\nimpacts all members of the [New Mexico Legislature] equally.” Kerr II, 824 F.3d at\n\n1215. Therefore, the Legislator Plaintiffs lack standing. Id. at 1217.\n\n In an attempt to evade our holding in Kerr II, Plaintiffs contend that their\n\nsituation is “sui generis” because the Legislator Plaintiffs’ claim involves a\n\n“separation-of-powers component.” Aplt. Reply Br. at 22–23. Notwithstanding that\n\nPlaintiffs waive this argument by first raising it in their Reply Brief, In re Motor Fuel\n\nTemperature Sales Practices Litigation, 872 F.3d 1094, 1105 n.2 (10th Cir. 2017), a\n\n“case [that] presents separation of powers concerns” merits a rigorous standing\n\ninquiry, Kerr II, 824 F.3d at 1215 (citing Ariz. State Legislature, 135 S. Ct. at 2665\n\nn.12). Rather than advance their standing argument, Plaintiffs have highlighted a\n\nfacet of their case that weighs against concluding that the Legislator Plaintiffs have\n\nstanding.\n\nC. Darlene Collins\n\n Defendants do not challenge Collins’s standing on appeal, though they did\n\nunsuccessfully raise the issue before the district court in their motion to dismiss. We\n\ncan raise issues of standing and mootness sua sponte because we “have an\n\nindependent obligation to determine whether subject-matter jurisdiction exists, even\n\n 8\n The Legislator Plaintiffs do not argue that they have standing to assert the\nEighth and Fourteenth Amendment rights of criminal defendants.\n\n 16\n\fin the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500,\n\n514 (2006). “Plaintiffs have the burden to demonstrate standing for each form of\n\nrelief sought.” Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006). This burden\n\nexists “at all times throughout the litigation,” id., though our terminology changes\n\ndepending on the stage of litigation. “[M]ootness ‘[is] the doctrine of standing set in\n\na time frame: The requisite personal interest that must exist at the commencement of\n\nthe litigation (standing) must continue throughout its existence (mootness).’” Brown\n\nv. Buhman, 822 F.3d 1151, 1164 (10th Cir. 2016) (quoting Arizonans for Official\n\nEnglish v. Arizona, 520 U.S. 43, 68 n.22 (1997)).\n\n Collins seeks damages, as well as declaratory and injunctive relief. App. Vol.\n\nI at 47–48. When Collins filed suit, she had standing to seek damages for the alleged\n\ndeprivation of her constitutional rights.9 See Faustin v. City, Cty. of Denver, 268\n\nF.3d 942, 948 (10th Cir. 2001). Her claim for damages is not moot; a damages award\n\nwould still compensate Collins for her alleged injury. Lippoldt, 468 F.3d at 1216–17.\n\nThe same is true insofar as Collins seeks a retrospective declaratory judgment that\n\nher constitutional rights were violated in July 2017. Id. at 1217.\n\n But Collins also seeks prospective relief, in the form of a declaratory judgment\n\nand a permanent injunction. App. Vol. I at 47–48. Assuming that Collins had\n\nstanding to seek prospective relief when she filed suit, Collins’s claims for\n\n 9\n Collins does not have standing to pursue the claim that the 2017 Rules\n“infringe[] upon the power of the [New Mexico] Legislature to make law,” App. Vol.\nI at 35. Collins cannot assert the state legislature’s legislative power. Sessions, 137\nS. Ct. at 1689.\n\n 17\n\fprospective relief are now moot because she is no longer subject to pretrial\n\nsupervision. Lippoldt, 468 F.3d at 1217–19; Oral Argument at 5:35–5:45\n\n(representation by Plaintiffs’ counsel that New Mexico is not pursuing criminal\n\ncharges against Collins).\n\n Moreover, a plaintiff cannot sustain a claim for prospective injunctive relief\n\nthat is based on “speculative future harm.” Lippoldt, 468 F.3d at 1218. Plaintiffs\n\nhave never suggested that Collins faces an appreciable risk of future arrest and\n\nsubsequent arraignment using the 2017 Rules and the Arnold Tool. “[T]o establish\n\nan actual controversy . . . , [Collins] would [need] . . . to allege that [she will] . . .\n\nhave another encounter with the police.” City of Los Angeles v. Lyons, 461 U.S. 95,\n\n105–06 (1983); see also O’Shea v. Littleton, 414 U.S. 488, 497 (1974) (“We assume\n\nthat respondents will conduct their activities within the law and so avoid prosecution\n\nand conviction as well as exposure to the challenged course of conduct said to be\n\nfollowed by petitioners.”). “Absent a sufficient likelihood that [she] will again be\n\nwronged in a similar way, [Collins] is no more entitled to an injunction than any\n\nother citizen of [New Mexico]; and a federal court may not entertain a claim by any\n\nor all citizens who no more than assert that [a state’s laws] . . . are unconstitutional.”\n\nLyons, 461 U.S. at 111.\n\n In summary, BBANM and the Legislator Plaintiffs lack standing to assert the\n\nclaims raised in this case; Collins has standing to seek damages and retrospective\n\ndeclaratory relief based on the alleged violation of her Eighth and Fourteenth\n\nAmendment rights; but Collins’s claims for prospective declaratory and injunctive\n\n 18\n\frelief are moot. Therefore, we turn to the question of whether Defendants are\n\nimmune to Collins’s claims for damages and retrospective declaratory relief.\n\n III\n\n We review de novo whether Defendants are immune from suit. Muscogee\n\n(Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 (10th Cir. 2010)\n\n(sovereign immunity); Lundahl v. Zimmer, 296 F.3d 936, 938 (10th Cir. 2002)\n\n(judicial immunity); Kamplain v. Curry Cty. Bd. of Comm’rs, 159 F.3d 1248, 1250\n\n(10th Cir. 1998) (legislative immunity). “The proponent of a claim to absolute\n\nimmunity bears the burden of establishing the justification for such immunity.”\n\nAntoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993). Three immunity\n\ndoctrines are at issue in this case—sovereign immunity, judicial immunity, and\n\nlegislative immunity. We address each in turn.\n\nA. Sovereign Immunity\n\n Per the Eleventh Amendment, “[s]tates may not be sued in federal court unless\n\nthey consent to it in unequivocal terms or unless Congress, pursuant to a valid\n\nexercise of power, unequivocally expresses its intent to abrogate the immunity.”\n\nMuscogee (Creek) Nation, 611 F.3d at 1227 (quoting Green v. Mansour, 474 U.S. 64,\n\n68 (1985)). “This prohibition encompasses suits against state agencies[ and] [s]uits\n\nagainst state officials acting in their official capacities.” Id. (citations omitted). But,\n\n“[u]nder Ex parte Young[, 209 U.S. 123 (1908)], a plaintiff may avoid the Eleventh\n\nAmendment’s prohibition on suits against states in federal court by seeking to enjoin\n\na state official from enforcing an unconstitutional statute.” Cressman v. Thompson,\n\n 19\n\f719 F.3d 1139, 1146 n.8 (10th Cir. 2013) (quotation marks omitted). Collins has\n\nsued three New Mexico courts and various state officials in their official capacities to\n\nobtain declaratory and injunctive relief. New Mexico has not consented to this suit\n\nand Congress has not abrogated New Mexico’s immunity from Plaintiffs’ § 1983\n\nclaims. Muscogee (Creek) Nation, 611 F.3d at 1227. Therefore, we must decide\n\nwhether the New Mexico courts named as defendants are entitled to sovereign\n\nimmunity and whether Ex parte Young allows Collins to proceed against the state\n\nofficials in their official capacities. Plaintiffs’ discussion of sovereign immunity is\n\nlimited to a single sentence in their Opening Brief. See Aplt. Br. at 48. Plaintiffs’\n\n“conclusory assertion[] . . . do[es] not adequately present us with an argument . . . ,\n\nso we [could] consider [the point] abandoned.” Stender v. Archstone-Smith\n\nOperating Tr., 910 F.3d 1107, 1117 (10th Cir. 2018). We briefly address sovereign\n\nimmunity to more clearly explain our disposition of Collins’s claims.\n\n “As a general matter, state courts are considered arms of the state” and are\n\nentitled to sovereign immunity. 13 Charles Alan Wright & Arthur R. Miller, Federal\n\nPractice & Procedure § 3524.2 (3d ed. 2018). The general rule holds true in this\n\ncase. The New Mexico Supreme Court, the Second Judicial District Court, and the\n\nBernalillo County Metropolitan Court are state agencies. N.M. Const. art. VI, § 1\n\n(“The judicial power of the state shall be vested in . . . a supreme court, a court of\n\nappeals, district courts; . . . and such other courts inferior to the district courts as may\n\nbe established by law from time to time in any district, county or municipality of the\n\nstate.”); N.M. Stat. § 34-6-21 (“The district courts are agencies of the judicial\n\n 20\n\fdepartment of the state government.”); N.M. Stat. § 34-8a-8 (“The metropolitan court\n\nis an agency of the judicial department of state government.”). Therefore, sovereign\n\nimmunity bars Collins’s claims against the New Mexico Supreme Court, the Second\n\nJudicial District Court, and the Bernalillo County Metropolitan Court.\n\n Collins’s claims against the state officials in their official capacities also fail.\n\nCollins cannot proceed under Ex parte Young because she only has standing to seek\n\nretrospective declaratory relief.10 Ex parte Young “may not be used to obtain a\n\ndeclaration that a state officer has violated a plaintiff’s federal rights in the past.”\n\nBuchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 495 (10th Cir. 1998) (citing\n\nPuerto Rico Aqueduct v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)).\n\nTherefore, sovereign immunity also bars Collins’s claims against the individual\n\ndefendants in their official capacities.\n\nB. Judicial Immunity\n\n “Like other forms of official immunity, judicial immunity is an immunity from\n\nsuit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11\n\n 10\n The district court, when analyzing Collins’s demand for prospective\ndeclaratory and injunctive relief, found that Collins could not proceed under Ex parte\nYoung. App. Vol. III at 667–68. The district court reasoned that Ex parte Young was\ninapplicable because “Plaintiffs fail[ed] to state a claim for an ongoing violation of\nfederal law.” Id. at 668. “But the inquiry into whether suit lies under Ex parte\nYoung does not include an analysis of the merits of the claim.” Verizon Md., Inc. v.\nPub. Serv. Comm’n, 535 U.S. 635, 646 (2002). “In determining whether the doctrine\nof Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only\nconduct a straightforward inquiry into whether the complaint alleges an ongoing\nviolation of federal law and seeks relief properly characterized as prospective.” Id. at\n645 (alterations and quotation marks omitted). Collins does not raise this error in the\ndistrict court’s reasoning.\n\n 21\n\f(1991) (per curiam) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The\n\n“immunity applies only to personal capacity claims.” Crowe & Dunlevy, P.C. v.\n\nStidham, 640 F.3d 1140, 1156 (10th Cir. 2011). At issue here is whether the chief\n\njudges and court executive officers of the Second Judicial District Court and the\n\nBernalillo County Metropolitan Court are immune from Collins’s claims for\n\ndamages.\n\n In two sentences of their complaint, Plaintiffs allege that the Second Judicial\n\nDistrict Court and the Bernalillo County Metropolitan Court “adopted and\n\nimplemented the” Arnold Tool.11 App. Vol. I at 20; see also id. at 29. In the district\n\ncourt, Plaintiffs argued that these were “administrative,” not judicial, acts. App. Vol.\n\nII at 298. The district court found that judicial immunity barred Plaintiffs’ claims\n\nagainst the chief judges and court executive officers, in their individual capacities,\n\nbecause Plaintiffs’ claims targeted the judicial act of “implement[ing] [] the 2017\n\nRules.” App. Vol. III at 670. In their briefing on appeal, Plaintiffs never discuss\n\nhow the district court erred when analyzing judicial immunity. In a single clause\n\n\n 11\n Chief Judge Nash, Chief Judge Alaniz, Court Executive Officer Noel, and\nCourt Executive Officer Padilla are only mentioned in the caption of the complaint\nand in the list of parties. App. Vol. I at 17, 25–26. Their names also appear in an\nattachment to the complaint. Id. at 66, 71. “[I]n a § 1983 action it is ‘particularly\nimportant’ that ‘[a] complaint make clear exactly who is alleged to have done what to\nwhom, to provide each individual with fair notice as to the basis of the claims against\nhim or her, as distinguished from collective allegations against the state.’” Brown v.\nMontoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (quoting Kansas Penn Gambling,\nLLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2015)). Here, Collins’s allegations\nare so sparse that it is difficult to identify the factual basis for her claims against the\nstate court judges and court executive officers.\n\n 22\n\ffrom the section of their Opening Brief discussing Rule 11 sanctions, Plaintiffs\n\npassingly characterize adoption of the Arnold Tool as a “ministerial decision[].”\n\nAplt. Br. at 46. Plaintiffs have abandoned their argument regarding judicial\n\nimmunity by failing to address the district court’s analysis or cite authority for their\n\nposition. Stender, 910 F.3d at 1117; see also, e.g., Benham v. Ozark Materials River\n\nRock, LLC, 885 F.3d 1267, 1276 (10th Cir. 2018) (concluding that appellant waived\n\nargument “by inadequately briefing the issue”). “[T]he court cannot take on the\n\nresponsibility of serving as the litigant’s attorney in constructing arguments and\n\nsearching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840\n\n(10th Cir. 2005) (describing limits of our role when litigants proceed pro se;\n\nPlaintiffs are represented by counsel).\n\nC. Legislative Immunity\n\n “Absolute legislative immunity attaches to all actions taken ‘in the sphere of\n\nlegitimate legislative activity.’” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)\n\n(quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). “Whether an act is\n\nlegislative turns on the nature of the act, rather than on the motive or intent of the\n\nofficial performing it.” Id. A state “[c]ourt and its members are immune from suit\n\nwhen acting in their legislative capacity,” such as by promulgating “rules of general\n\napplication [that] are statutory in character.” Supreme Court of Va. v. Consumers\n\nUnion of the U.S., Inc., 446 U.S. 719, 731–34 (1980). Plaintiffs do not dispute that\n\n\n\n\n 23\n\fNew Mexico’s Rules of Criminal Procedure are “rules of general application.”12 Id.\n\nat 731. Therefore, the justices of the Supreme Court of New Mexico “act[ed] in their\n\nlegislative capacity” when they amended the state’s rules of criminal procedure in\n\n2017. Id. at 734.\n\n Instead, Plaintiffs focus on whether the 2017 Rules are the result of\n\n“legitimate” legislative activity. They argue that the New Mexico legislature retains\n\nlegislative power over criminal defendants’ substantive right to bail, such that the\n\nNew Mexico Supreme Court exceeded its legislative power when promulgating the\n\n2017 Rules. Aplt. Br. at 18–20, 49–51; Aplt. Reply Br. at 14–19. “To find that [an\n\naction] has exceeded the bounds of legislative power it must be obvious that there\n\nwas a usurpation of functions exclusively vested in” another branch of government.\n\nTenney, 341 U.S. at 378. That is not the case here. The New Mexico legislature has\n\ngiven the New Mexico Supreme Court the power to promulgate rules of criminal\n\nprocedure.\n\n The supreme court of New Mexico shall, by rules promulgated by it\n from time to time, regulate pleading, practice and procedure in\n judicial proceedings in all courts of New Mexico for the purpose of\n\n 12\n Plaintiffs repeatedly suggest that promulgating the 2017 Rules was an\nenforcement action, such that legislative immunity would not apply. Aplt. Br. at 46,\n50. Plaintiffs cite Consumers Union for the proposition that legislative immunity\ndoes not bar a suit for declaratory and injunctive relief against a state supreme court\nand its justices when the defendants exercised their own “authority . . . to initiate\n[disciplinary] proceedings against attorneys.” 446 U.S. at 736. This analysis does\nnot apply here because Plaintiffs have not sued the justices of the New Mexico\nSupreme Court for enforcing the 2017 Rules. See App. Vol. I at 19–20. As\nexplained in Consumers Union, legislative immunity applies when a case arises from\na court’s promulgation of generally applicable rules. 446 U.S. at 731–34.\n\n 24\n\f simplifying and promoting the speedy determination of litigation\n upon its merits. Such rules shall not abridge, enlarge or modify the\n substantive rights of any litigant.\n\nN.M. Stat. § 38-1-1. The delegated authority is not unlimited, but Plaintiffs have not\n\npointed to anything suggesting that the New Mexico legislature exercises exclusive\n\nlegislative authority over bail.13 Therefore, it is not “obvious” that the New Mexico\n\nSupreme Court justices have exceeded the legislative authority vested in them by N.M.\n\nStat. § 38-1-1, which means that the justices are entitled to legislative immunity for\n\nclaims arising from their promulgation of the 2017 Rules. Tenney, 341 U.S. at 378–79;\n\nsee also Sable v. Myers, 563 F.3d 1120, 1126 (10th Cir. 2009) (refusing to “adopt a very\n\nrestrictive view of what is legitimate legislative activity” (quotation marks omitted)).\n\n In summary, sovereign immunity bars Collins’s claims against the state courts\n\nand state officials in their official capacities; Plaintiffs have abandoned their\n\nargument regarding judicial immunity, which disposes of Collins’s claims against the\n\nstate court chief judges and court executive officers in their individual capacities; and\n\nlegislative immunity bars Collin’s claims against the supreme court justices in their\n\nindividual capacities.\n\n\n\n\n 13\n We have identified two statutes that substantively discuss bail. Both\nenvision a necessary role for the New Mexico Supreme Court, further demonstrating\nthat the Court has legislative authority over the procedural aspects of bail. See N.M.\nStat. § 31-3-1 (“Any statutory provision or rule of court governing the release of an\naccused may be carried out by a responsible person designated by the court.”); N.M.\nStat. § 31-3-5 (“No bond shall be accepted from a paid surety . . . by a . . . district\ncourt unless executed on a form which has been approved by the supreme court.”).\n\n 25\n\f “Absolute immunity [undoubtedly] has its costs” for plaintiffs like Collins\n\nwho seek to vindicate their constitutional rights. Snell v. Tunnell, 920 F.2d 673, 687\n\n(10th Cir. 1990). “The rationale for according absolute immunity in the civil rights\n\ncontext is to incorporate traditional common law immunities and to allow\n\nfunctionaries in the judicial system the latitude to perform their tasks absent the\n\nthreat of retaliatory § 1983 litigation.” Id. at 686–87 (footnote omitted). “Though\n\nsuch suits might be satisfying personally for a plaintiff, they could jeopardize the\n\njudicial system’s ability to function.” Id. at 687. “[S]uits against judges [are not] the\n\nonly available means through which litigants can protect themselves from the\n\nconsequences of judicial error.” Forrester, 484 U.S. at 227. Collins could have\n\nraised the alleged error in her criminal proceedings. See id. Collins could have also\n\nnamed defendants who caused her pretrial detention and supervision but are not\n\nmembers of the state judiciary. See, e.g., Holland v. Rosen, 277 F. Supp. 3d 707, 723\n\n(D.N.J. 2017), aff’d 895 F.3d 272 (3d Cir. 2018) (naming as a defendant the person\n\nwho “enforce[ed] the pretrial release conditions”).\n\n To bring it all together, Collins is the only Plaintiff with standing, but\n\nDefendants are immune to her claims, so we do not address the merits of Collins’s\n\nclaims that the 2017 Rules and the Arnold Tool violate the Eighth and Fourteenth\n\nAmendments.14 Rather, we turn to the issue of sanctions.\n\n\n\n 14\n As explained throughout this Opinion, no Plaintiff has standing to pursue the\nclaim that the New Mexico supreme court justices violated the New Mexico\n (continued . . .)\n 26\n\f IV\n\n Before discussing the district court’s imposition of Rule 11 sanctions, we\n\nbriefly address appellate jurisdiction. We ordered briefing on the question of\n\nwhether there is a final appealable order because the sanctions order contemplates a\n\n“future final award” of attorney’s fees and does not define the amount of interest\n\napplicable to the sanctions award. Dkt. No. 10550099 at 3–4. “[I]n considering\n\nwhether a judgment is ‘final’ under § 1291, the ‘label used to describe the judicial\n\ndemand is not controlling,’ meaning we ‘analyze the substance of the district court’s\n\ndecision, not its label or form.’” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th\n\nCir. 2003) (quoting Albright v. UNUM Life Ins. Co., 59 F.3d 1089, 1092 (10th Cir.\n\n1995)).\n\n “[A] sanction order against an attorney currently of record is not a final\n\ndecision for purposes of a § 1291 appeal where the underlying controversy remains\n\nunresolved.” Howard v. Mail-Well Envelope Co., 90 F.3d 433, 435 (10th Cir. 1996).\n\nEven once the merits of a case have been resolved, “an appeal from the award of\n\nsanctions may not be taken until the amount has been determined.” Turnbull v.\n\nWilcken, 893 F.2d 256, 258 (10th Cir. 1990) (per curiam) (citing Phelps v. Washburn\n\nUniv. of Topeka, 807 F.2d 153, 154 (10th Cir. 1986)). Here, the district court’s order\n\nimposing Rule 11 sanctions is a final appealable order because the substance of the\n\n\n(cont’d)\nConstitution by promulgating the 2017 Rules. Therefore, we need not discuss that\nclaim further.\n\n 27\n\fcase has been resolved and the parties have stipulated that the sanction is $14,868.00.\n\nApp. Vol. III at 636–77, 678–79, 732–33. The funds have been deposited in the\n\nregistry of the district court, where they are earning interest. Id. at 732–33.\n\n Turning to the substance of the issue, “[w]e review for an abuse of discretion\n\nthe district court’s . . . imposition of Rule 11 sanctions.” King v. Fleming, 899 F.3d\n\n1140, 1147 (10th Cir. 2018). “Under this standard, we will reverse a district court\n\nonly ‘if it based its ruling on an erroneous view of the law or on a clearly erroneous\n\nassessment of the evidence.’” Id. (quoting Cooter & Gell v. Hartmarx Corp., 496\n\nU.S. 384, 405 (1990)). “[T]he award of Rule 11 sanctions involves two steps. The\n\ndistrict court first must find that a pleading violates Rule 11.” Adamson v. Bowen,\n\n855 F.2d 668, 672 (10th Cir. 1988). “The second step is for the district court to\n\nimpose an appropriate sanction.” Id.\n\n Rule 11 states:\n\n By presenting to the court a pleading, written motion, or other\n paper—whether by signing, filing, submitting, or later advocating\n it—an attorney . . . certifies that to the best of the person’s\n knowledge, information, and belief, formed after an inquiry\n reasonable under the circumstances: (1) it is not being presented for\n any improper purpose, such as to harass, cause unnecessary delay, or\n needlessly increase the cost of litigation; [and] (2) the claims,\n defenses, and other legal contentions are warranted by existing law\n or by a nonfrivolous argument for extending, modifying, or\n reversing existing law or for establishing new law . . . .\n\nFed. R. Civ. P. 11(b). Rule 11 “imposes . . . an affirmative duty to conduct a reasonable\n\ninquiry into the facts and the law before filing.” Bus. Guides, Inc. v. Chromatic\n\nCommc’ns Enters., Inc., 498 U.S. 533, 551 (1991). We “evaluate [an attorney’s] conduct\n\n\n 28\n\funder a standard of ‘objective reasonableness—whether a reasonable attorney admitted to\n\npractice before the district court would file such a document.’” Predator Int’l, Inc. v.\n\nGamo Outdoor USA, Inc., 793 F.3d 1177, 1182 (10th Cir. 2015) (quoting Adamson, 855\n\nF.2d at 673). “Because our adversary system expects lawyers to zealously represent their\n\nclients, [the Rule 11] standard is a tough one to satisfy; an attorney can be rather\n\naggressive and still be reasonable.” Id.\n\n When, as here, a pleading contains allegations that are not warranted by\n\nexisting law, we examine whether they are “warranted ‘by a nonfrivolous argument\n\nfor extending, modifying, or reversing existing law or for establishing new law.’” Id.\n\n(quoting Fed. R. Civ. P. 11(b)). Again, we employ an objective standard “intended to\n\neliminate any ‘empty-head pure-heart’ justification for patently frivolous arguments.”\n\nFed. R. Civ. P. 11 advisory committee’s note to 1993 amendment. But, when we\n\nanalyze the frivolity of an attorney’s arguments, “it is not sufficient for an offending\n\nattorney to allege that a competent attorney could have made a colorable claim based\n\non the facts and law at issue; the offending attorney must actually present a colorable\n\nclaim.” White v. Gen. Motors Corp., 908 F.2d 675, 680 (10th Cir. 1990)\n\n“[P]laintiffs may not shield their own incompetence by arguing that, while they failed\n\nto make a colorable argument, a competent attorney would have done so.” Id.\n\n After holding a hearing, the district court granted the motion for sanctions\n\nbecause (1) the Legislator Plaintiffs and BBANM “ha[d] no objectively reasonable\n\nbasis for asserting standing to sue” and (2) “Plaintiffs’ claims for money damages\n\nagainst . . . Defendants are frivolous because . . . Defendants are protected by well-\n\n 29\n\festablished immunity doctrines.”15 App. Vol. III at 687–90. The district court also\n\nfound that “Plaintiffs’ counsel added the [L]egislator Plaintiffs and [BBANM] as\n\nparties to this case for [an] improper purpose—namely, for political reasons to\n\nexpress their opposition to lawful bail reforms in the State of New Mexico rather than\n\nto advance colorable claims for judicial relief.” Id. at 687. The district court ordered\n\nA. Blair Dunn, one of Plaintiffs’ attorneys, to pay the attorney’s fees and costs\n\nincurred by Defendants because of the Rule 11 violation; the sanction amounted to\n\n$14,868.00. Id. at 692, 732–34.\n\n The district court followed the correct two-step process for imposing a Rule 11\n\nsanction. Adamson, 855 F.2d at 672. As we explain below, the district court’s\n\nanalysis of the evidence was not clearly erroneous. Therefore, the district court did\n\nnot abuse its discretion when it granted Defendants’ motion for Rule 11 sanctions.16\n\nRoth v. Green, 466 F.3d 1179, 1188–90 (10th Cir. 2006) (holding that district court\n\n 15\n Plaintiffs argue that the Rule 11 hearing was deficient because Plaintiffs\nshould have been allowed to produce evidence. Aplt. Br. at 54. The hearing was not\ndeficient. “Although a party must receive notice and an opportunity to respond\nbefore being sanctioned under Rule 11, ‘[t]he opportunity to fully brief the issue is\nsufficient to satisfy due process requirements.’” Dodd Ins. Servs., Inc. v. Royal Ins.\nCo. of Am., 935 F.2d 1152, 1160 (10th Cir. 1991) (internal citations omitted)\n(quoting White, 908 F.2d at 686).\n 16\n Plaintiffs argue that sanctions were inappropriate because Collins’s\nconstitutional claims were not frivolous. Aplt. Br. at 44. But the relative quality of\nCollins’s constitutional claims is not dispositive because “a pleading containing both\nfrivolous and nonfrivolous claims may violate Rule 11.” Dodd Ins. Servs., 935 F.2d\nat 1158. This is not a case in which “a single frivolous or groundless claim” was\n“easily disposed of by the opposing part[ies].” Id. Rather, Plaintiffs’ arguments\nregarding standing and immunity materially increased the complexity of the case by\ninvolving improper parties.\n\n 30\n\fdid not abuse its discretion when finding that plaintiffs’ attorney violated Rule 11\n\nbecause there were “a host of legal impediments to [plaintiffs] prevailing on their\n\nclaims,” including that “the majority of the defendants had, at best, only tangential\n\nrelationships to” plaintiffs’ claims and plaintiffs’ counsel ignored controlling\n\nprecedent).\n\n Plaintiffs’ standing arguments ignored controlling precedent. Under Kowalski,\n\n543 U.S. at 131–34, BBANM and its members lack standing to assert the\n\nconstitutional rights of criminal defendants. Under Kerr II, 824 F.3d at 1214–17, the\n\nLegislator Plaintiffs lack standing to assert an institutional injury. When Plaintiffs\n\nwere confronted with these binding authorities in Defendants’ motion to dismiss and\n\nmotion for Rule 11 sanctions, Plaintiffs unreasonably attempted to distinguish\n\nthemselves from the plaintiffs in Kowalski and Kerr II. App. Vol. II at 300–11, 551.\n\n For example, without acknowledging that pro se criminal defendants in\n\nKowalski were able to assert their own constitutional rights, Plaintiffs argued that\n\ncriminal defendants in New Mexico cannot assert their own constitutional rights\n\nbecause they lack “funds to . . . retain counsel.” Id. at 307. Plaintiffs then asserted\n\nthat BBANM and its members have a close relationship with every criminal\n\ndefendant arrested in New Mexico since July 2017 because these defendants “already\n\nexist,” notwithstanding that the Supreme Court reached the opposite conclusion in\n\nKowalski under a materially similar set of facts. Id. at 308. When attempting to\n\nevade Kerr II, Plaintiffs paradoxically claimed that the alleged loss of “the right of\n\nthe legislature to pass laws” was not “an institutional injury.” Id. at 310.\n\n 31\n\f Plaintiffs’ arguments regarding immunity suffer from similar infirmities.17\n\nMost glaringly, Plaintiffs maintained that “any argument regarding sovereign\n\nimmunity . . . [was] just not applicable” in this case because “Congress waived . . .\n\nsovereign immunity for individual state actors [by enacting] . . . § 1983.” App. Vol.\n\nII at 547. This statement is inaccurate. Will v. Mich. Dep’t of State Police, 491 U.S.\n\n58, 63–71 (1989). It also offers no explanation why Plaintiffs thought the New\n\nMexico Supreme Court, the Second Judicial District Court, and the Bernalillo County\n\nMetropolitan Court were proper defendants.18 Plaintiffs’ arguments regarding\n\njudicial and legislative immunity fare little better.\n\n As discussed previously, Plaintiffs abandoned their arguments about judicial\n\nimmunity by failing to adequately brief them on appeal. Stender, 910 F.3d at 1117.\n\nAccordingly, Plaintiffs have not shown how the district court abused its discretion\n\nwhen finding that Plaintiffs’ arguments regarding judicial immunity were not\n\nsupported by existing law.\n\n 17\n Plaintiffs argue that “[j]udicial immunity principles are a developing area of\nthe law, warranting litigation and clarification.” Aplt. Br. at 45. The district court\nfound that “Plaintiffs [did] not make any argument for extending, modifying, or\nreversing existing law or for establishing new law” on judicial immunity. App. Vol.\nIII at 690 (quotation marks omitted). Plaintiffs do not challenge this finding, which\nforecloses their attempt to now argue for “clarification.” White, 908 F.2d at 680.\n 18\n If Collins had standing to seek prospective relief, her claims for prospective\ndeclaratory and injunctive relief could have proceeded, under Ex parte Young, against\nthe state officials in their official capacities. Verizon, 535 U.S. at 645–46. But,\nPlaintiffs have never raised Ex parte Young themselves, choosing instead to deny that\nsovereign immunity is even applicable. Therefore, the fact that Plaintiffs might have\nrelied on Ex parte Young when discussing sovereign immunity does not weigh\nagainst the district court’s imposition of sanctions. White, 908 F.2d at 680.\n\n 32\n\f Plaintiffs then argued that legislative immunity was unavailable to New\n\nMexico’s supreme court justices because the New Mexico legislature “has never\n\ndelegated exclusive legislative authority to the New Mexico Supreme Court.” App.\n\nVol. II at 549. But the New Mexico legislature has empowered the New Mexico\n\nSupreme Court to promulgate rules of criminal procedure. N.M. Stat. § 38-1-1.\n\nWhen exercising that delegated legislative authority to promulgate generally\n\napplicable rules, the court and its justices are entitled to legislative immunity.\n\nConsumers Union, 446 U.S. at 731–34.\n\n We now turn to the district court’s finding that Plaintiffs included BBANM\n\nand the Legislator Plaintiffs for an improper purpose—to express political opposition\n\nto the 2017 Rules. Plaintiffs argue that “improper motivation does not warrant\n\nsanction when there is [an] objective basis for filing suit.” Aplt. Br. at 58–59; see\n\nalso Burkhart ex rel. Meeks v. Kinsley Bank, 852 F.2d 512, 515 (10th Cir. 1988)\n\n(reasoning that an attorney who filed a harassing complaint could not be sanctioned\n\nunder Rule 11 if the complaint’s allegations were legally and factually warranted).\n\nBut, as just discussed, there was no reasonable basis for including BBANM and the\n\nLegislator Plaintiffs in this case. Therefore, this is not a situation in which the\n\ndistrict court awarded sanctions based on a finding of improper purpose even though\n\nthere was an objective basis for filing suit. The district court could have concluded that\n\nRule 11 sanctions were warranted without relying on any potential political purpose\n\nbehind the suit, and we affirm on that basis.\n\n\n\n 33\n\f Plaintiffs also argue that evidence of Dunn’s letter to the New Mexico\n\nlegislature about this lawsuit cannot support the district court’s finding of political\n\nmotivation because Dunn’s letter is protected by the First Amendment. Aplt. Br. at\n\n55; Aplt. Reply Br. at 25–26. The district court did not sanction Dunn for his letter\n\nto the state legislature. App. Vol. III at 687–88 (“While Plaintiffs’ counsel is entitled\n\nto express opinions regarding bail reform in New Mexico, Plaintiffs are not entitled\n\nto file claims in a federal court without standing solely to achieve political\n\nobjectives.”). For the district court, Dunn’s letter supported its finding that Dunn’s\n\nchoice to name BBANM and the Legislator Plaintiffs as plaintiffs was not motivated\n\nby a reasonable belief that they had standing.\n\n Before moving on from the issue of Rule 11 sanctions, we emphasize that “the\n\ncentral purpose of Rule 11 is to deter baseless filings in district court and thus . . .\n\nstreamline the administration and procedure of the federal courts.” Cooter & Gell,\n\n496 U.S. at 393. “Baseless filing puts the machinery of justice in motion, burdening\n\ncourts and individuals alike with needless expense and delay.” Id. at 398. This case\n\nis a prime example of the waste and distraction that result when attorneys disregard\n\nRule 11’s certifications. At the heart of this case lies Darlene Collins’s allegation\n\nthat her constitutional rights were violated when she was detained by the state of\n\nNew Mexico. But because of the various parties unreasonably named in the\n\ncomplaint by Plaintiffs’ attorneys, this case instead was broadly pled to include\n\nentities and individuals whose standing to sue, or whose immunity from suit, became\n\nthe main focus of the litigation.\n\n 34\n\f V\n\n “We ordinarily review a denial of a motion to amend a pleading for abuse of\n\ndiscretion.” Miller ex rel. S.M. v. Bd. of Educ., 565 F.3d 1232, 1249 (10th Cir.\n\n2009). “However, when denial is based on a determination that amendment would be\n\nfutile, our review for abuse of discretion includes de novo review of the legal basis\n\nfor the finding of futility.” Id. at 1249.\n\n While Defendants’ motion to dismiss and motion for Rule 11 sanctions were\n\npending, Plaintiffs sought leave to amend their complaint to add a new claim: that\n\nDefendants violated Plaintiffs’ First Amendment right to freedom of speech by\n\nmoving for sanctions. App. Vol. II at 397. The district court denied the motion to\n\namend as futile because “[t]he First Amendment does not protect frivolous claims,”\n\nso the “Rule 11 Motion was not a retaliatory act to punish Plaintiffs, but rather, an\n\nacceptable pleading expressly allowed by the Federal Rules of Civil Procedure.”\n\nApp. Vol. III at 673–74.\n\n “[T]he right of access to the courts is an aspect of the First Amendment right\n\nto petition the Government for redress of grievances.” Bill Johnson’s Rests., Inc. v.\n\nNLRB, 461 U.S. 731, 741 (1983). But “[t]he [F]irst [A]mendment interests involved\n\nin private litigation . . . are not advanced when the litigation is based on . . .\n\nknowingly frivolous claims.” United States v. Ambort, 405 F.3d 1109, 1117 (10th\n\nCir. 2005) (quoting Bill Johnson’s Rests., 461 U.S. at 743); see also In re Harper,\n\n725 F.3d 1253, 1261 (10th Cir. 2013) (“[T]he First Amendment does not protect the\n\nfiling of frivolous motions.”). As discussed when affirming the district court’s\n\n 35\n\fimposition of Rule 11 sanctions, Plaintiffs’ arguments regarding standing and\n\nimmunity were baseless. Therefore, the district court correctly found that Plaintiffs’\n\nmotion to amend was futile; Defendants’ motion for Rule 11 sanctions did not\n\ninterfere with Plaintiffs’ First Amendment rights. See King, 899 F.3d at 1151 n.17\n\n(“[T]he First Amendment is in no way a defense to Rule 11 violations.”).\n\n VI\n\n We AFFIRM.\n\n\n\n\n 36", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370722/", "author_raw": "BRISCOE, Circuit Judge."}]}	BRISCOE	MATHESON	BACHARACH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593469/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,909	UNITED STATES of America, Plaintiff - Appellant, v. Gregory OROZCO, Defendant - Appellee.	United States v. Orozco	2019-02-26	18-3003	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Lucero, Seymour, Kelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888064/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888065/", "author_raw": ""}, {"type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 26, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellant,\n\n v. No. 18-3003\n\n GREGORY OROZCO,\n\n Defendant - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. No. 2:15-CR-20074-JAR-1)\n _________________________________\n\nCarrie N. Capwell, Assistant United States Attorney (Stephen R. McAllister, United\nStates Attorney, District of Kansas, James A. Brown, Assistant United States Attorney,\nChief, Appellate Section, with her on the briefs), Kansas City, Kansas, for Plaintiff -\nAppellant.\n\nJames R. Campbell, Coffman & Campbell, Burlington, Kansas, for Defendant - Appellee.\n _________________________________\n\nBefore LUCERO, SEYMOUR, and KELLY, Circuit Judges.\n _________________________________\n\nKELLY, Circuit Judge.\n _________________________________\n\n Defendant-Appellee Gregory Orozco was convicted by a jury of conspiracy to\n\ndistribute and possess with intent to distribute 50 grams or more of methamphetamine,\n\n21 U.S.C. § 846 (Count 1), and possession with intent to distribute five grams or more of\n\fmethamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii) & 18 U.S.C. § 2 (Count 2).\n\nMr. Orozco then filed a motion for a new trial alleging that the government violated his\n\nSixth Amendment right by interfering with his right to call a witness on his behalf. The\n\ndistrict court granted the motion, vacated the two convictions, and dismissed the\n\nunderlying counts of the superseding indictment. United States v. Orozco, 291 F. Supp.\n\n3d 1267, 1283 (D. Kan. 2017). The government now appeals, challenging the district\n\ncourt’s finding of prosecutorial misconduct and the remedy imposed. Exercising\n\njurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291, we affirm in part, reverse in\n\npart, and remand for further proceedings. On remand, the district court should vacate its\n\ndismissal of the underlying counts of the superseding indictment to allow for retrial.\n\n\n Background\n\n On February 23, 2013, Deputy United States Marshals (DUSMs) converged on a\n\npickup truck that matched the description of a fugitive’s vehicle after observing one of its\n\noccupants engage in what appeared to be a drug transaction. 3 Aplt. App. 364–65, 448–\n\n50. The deputies ordered the three passengers — Tommy Cordell-Eastland, Amy\n\nStimec-Smart, and Mr. Orozco — out of the vehicle. 2 Aplt. App. 273–74; 3 Aplt. App.\n\n375, 379–80, 451–53. The deputies then searched the truck and found an unloaded\n\nfirearm and a clear plastic case containing pills, marijuana, and four empty bags\n\nordinarily used for storing user-quantities of narcotics. 3 Aplt. App. 387–89, 536–37.\n\nThey also found a loaded magazine that fit the recovered firearm, id. at 527, 531–32, a\n\nlarge amount of U.S. currency, id. at 532–33, and a small pink nylon case containing SIM\n\n\n 2\n\fcards, a flash drive, and a bag containing 41.3 grams of methamphetamine. Id. at 389–\n\n90, 505–09; 5 Aplt. App. 993.\n\n Mr. Orozco was arrested and charged with two drug counts and two firearms\n\ncounts. 1 Aplt. App. 26–28. At trial, Mr. Cordell-Eastland and his wife Brittany\n\nEastland testified that they had purchased both user-quantities and occasional larger\n\nquantities of methamphetamine from Mr. Orozco. 2 Aplt. App. 133, 137, 144, 176–78;\n\n5 Aplt. App. 557–59, 563. Mr. Cordell-Eastland also testified that the currency seized\n\nfrom the truck was the proceeds of his repayment of a $1,000 drug debt to Mr. Orozco. 2\n\nAplt. App. 155–56, 162, 165. Felix Leal and Jose Alejandro Ruiz testified that they gave\n\nor sold methamphetamine to Mr. Orozco for resale on numerous occasions. 4 Aplt. App.\n\n631–32, 636; 5 Aplt. App. 907–08, 914–16. Mr. Ruiz also testified that he sold Mr.\n\nOrozco a chameleon-colored Chevrolet Camaro unrelated to narcotics transactions.\n\n4 Aplt. App. 648–50. The government also called Deputy Chris Johnson, who testified\n\nthat Mr. Orozco told him that the methamphetamine found in the car was his. 4 Aplt.\n\nApp. 742.\n\n Mr. Orozco intended to call two witnesses. However, one witness exercised his\n\nFifth Amendment right not to testify. 5 Aplt. App. 950. The other witness, Mr. Ruiz-\n\nSalazar, was the brother of Jose Alejandro Ruiz, and was to testify that he, not his\n\nbrother, was friends with and sold the Camaro to Mr. Orozco. Id. at 953–54. Mr.\n\nOrozco’s attorney, James Campbell, requested a hearing to discuss the witnesses that the\n\ndefense planned to present. Id. at 948–50. When the district court asked why Mr.\n\nCampbell sought a hearing, Assistant United States Attorney Terra Morehead suggested\n\n 3\n\fthat Mr. Campbell was concerned about the scope of her impeachment and cross\n\nexamination; Mr. Ruiz-Salazar had been indicted in a federal drug case in the Western\n\nDistrict of Missouri (WDMO), and cross examination or impeachment could have\n\nadverse consequences on his other pending case. Id. at 954. As for her own concerns,\n\nMs. Morehead stated:\n\n [O]ne reason I wanted to bring it up is to make sure that there had been full\n conversation with him about the consequences of this, that he would be\n subject to cross examination. And if — if it’s obviously determined that he’s\n not being truthful, that there could be consequences, you know, beyond that,\n not only in this case but in the case there. Because if he were to perjure\n himself here, that could have consequences in his pending case there.\n\nId. She further sought to avoid a situation where Mr. Ruiz-Salazar took the stand only to\n\ninvoke the Fifth Amendment at cross examination. Id. at 955–56. Ms. Morehead then\n\ninformed the court that Mr. Campbell had been allowed the opportunity to interview Mr.\n\nRuiz-Salazar prior to his testimony, and that Mr. Ruiz-Salazar’s attorney, Tracy Spradlin,\n\nhad indicated that Ms. Morehead would be allowed that same opportunity. Id. at 964.\n\nThe court agreed, and it allowed Ms. Morehead to do so during recess. Id.\n\n After recess, Mr. Ruiz-Salazar no longer wanted to testify. Id. at 1008. According\n\nto Ms. Spradlin, Mr. Ruiz-Salazar was worried about incriminating himself, and was\n\n“feeling a little uneasy.” Id. at 1009. Ms. Spradlin further expressed that “in relation to\n\nsome of the stuff going on with his current case, he’s decided that he would rather not\n\n[testify].” Id. Mr. Campbell then speculated that “Mr. Ruiz’[s] position changed when\n\nhe was advised through [Ms. Spradlin based on her conversation with Ms. Morehead]\n\nthat his testimony may very well have an influence on his case in the Western District.”\n\n\n 4\n\fId.\n\n In response, Ms. Morehead explained:\n\n I would take exception that I ever represented anything like that to his\n counsel. And I don’t think she would say that either. So we discussed the\n fact that he had pending charges, we discussed the fact that if he was found\n to be lying under oath that there could be perjury consequences. And that\n was the extent of any consequence that I’m aware of that he could face . . . .\n\nId. Mr. Orozco then decided to testify, as he felt “forced to” in the absence of any other\n\nwitnesses. Id. at 1010; 6 Aplt. App. 1078; 7 Aplt. App. 1142.\n\n The following morning, before he testified, Mr. Orozco told the court that when he\n\nand Mr. Ruiz-Salazar rode a van back to jail the previous day, Mr. Ruiz-Salazar\n\nrecounted his conversation with Ms. Spradlin following her conversation with Ms.\n\nMorehead. 6 Aplt. App. 1075–76, 1078. According to Mr. Orozco, Ms. Morehead told\n\nMs. Spradlin to tell Mr. Ruiz-Salazar that “if you get in my way, I’m going to get in your\n\nway,” and therefore that Ms. Spradlin felt that Mr. Ruiz-Salazar should “step away from\n\nthis case.” 7 Aplt. App. 1140. The district court proceeded with the trial, but it agreed to\n\nhold a separate hearing to investigate Mr. Orozco’s allegations. Id. at 1143. Mr. Orozco\n\nwas convicted on both drug counts and acquitted on both firearm counts. 1 Aplt. App.\n\n26–28.\n\n Mr. Orozco subsequently filed a motion for a new trial, alleging that the\n\ngovernment interfered with his right to a fair trial. See 6 Aplt. App. 1071. The district\n\ncourt held two hearings in which it heard testimony from Mr. Orozco, Mr. Ruiz-Salazar,\n\nand Ms. Spradlin. See 6 Aplt. App. 1071, 1106. The government presented no evidence,\n\nlet alone from Ms. Morehead. Mr. Orozco reiterated that “the prosecutor told [Mr. Ruiz-\n\n 5\n\fSalazar] if — if they get in her way, she will get in their way. So Ms. Spradlin told him\n\njust get away from this case, so he felt threatened and decided not to testify on my\n\nbehalf.” 1 Id. at 1078. Ms. Spradlin prepared an affidavit, which provided that “Ms.\n\nMorehead did advise me that Mr. Ruiz-Salazar could be charged with perjury should he\n\ntestify,” that “Ms. Morehead . . . was aware of Mr. Ruiz-Salazar’s current indictment and\n\nwhich Western District AUSA was handling that indictment,” but that she “[did] not\n\nrecall all the specifics of [their] conversation in enough detail to state anything further.”\n\n7 Aplt. App. 1148.\n\n Ms. Spradlin also testified under oath at the first hearing, and Mr. Campbell\n\nengaged in the following exchange with her on direct examination:\n\n Q. Ms. Spradlin, how — what was the tone of your conversation with Ms.\n Morehead?\n A. I — I don’t really know how to put it, the tone.\n Q. Was it confrontational?\n A. I think it was assertive, I don’t think I would say confrontational.\n Q. Was it made clear to you that Ms. Morehead was going to seek\n ramifications against your client if he testified in the matter?\n A. I don’t think it was made clear. It was — it was just discussed that that\n was a strong possible outcome that could happen.\n ***\n Q. How long did that conversation take?\n A. Five minutes or less.\n\n6 Aplt. App. 1091–92. Ms. Spradlin also testified that she was not sure when Mr.\n\nRuiz-Salazar decided not to testify. Id. at 1094.\n\n\n1\n The government objected to Mr. Orozco’s testimony as hearsay. In response, the\ndistrict court explained that it would not “consider whatever Mr. Orozco testified to that\nMr. Ruiz[-Salazar] said as being the truth in terms of what Mr. Ruiz[-Salazar] says, [it is]\nnot going to consider that to be the truth but just to explain subsequent events that\noccurred.” 6 Aplt. App. 1077–78.\n 6\n\f On direct examination of Mr. Ruiz-Salazar, Mr. Campbell asked him if he “told\n\nMr. Orozco that if you got in the prosecutor’s way that the prosecutor would get in your\n\n— in your case,” and whether he “[felt] threatened that if he were to testify in Mr.\n\nOrozco’s case that it would impact his case,” to which he responded “Yes.” Id. at 1119–\n\n20. When asked what led to his decision not to testify, he responded, “Because the\n\nattorney and I talked that it wasn’t the moment to testify.” Id. at 1120–21. Mr. Campbell\n\nasked, “excluding anything [his] attorney told [him], was there anything else that made\n\n[him] change [his] mind?” to which he responded “No.” Id. at 1121.\n\n After the hearings, the district court granted Mr. Orozco’s motion, finding that Ms.\n\nMorehead’s statements to Ms. Spradlin “went far beyond a simple perjury warning.”\n\nOrozco, 291 F. Supp. 3d at 1278. The district court acknowledged that the conversation\n\nwas five minutes or less in duration, occurred outside the presence of Mr. Ruiz-Salazar,\n\nand that Ms. Morehead was assertive but not confrontational. Id. at 1277. However, it\n\ninterpreted Ms. Morehead’s warning that Mr. Ruiz-Salazar could face perjury charges “if\n\nhe testified” as implying that the mere act of testifying would lead to adverse\n\nconsequences. Id. at 1278. It also accepted as true Mr. Orozco’s testimony that Ms.\n\nMorehead threatened to “get in [Mr. Ruiz-Salazar’s] way” if he testified, and it found that\n\nher mentioning that she knew who was assigned to Mr. Ruiz-Salazar’s case only added to\n\nthe threatening nature of her comments. Id.\n\n The district court also concluded not only that the “tone, content and import of\n\n[Ms.] Morehead’s comments” established bad faith, but that other conduct also supported\n\nsuch a finding. Id. It cited her filing a sentencing information doubling the statutory\n\n 7\n\fminimum on the morning that the jury was to be selected, her late disclosure of\n\nexculpatory evidence,2 and a case over twenty years prior in which Ms. Morehead was\n\naccused of improper witness interference in securing a wrongful conviction. Id. at 1278–\n\n79, 1278 n.59. Next, it noted that even if Ms. Morehead merely advised Mr. Ruiz-\n\nSalazar of the consequences should he commit perjury, her comments were\n\n“unnecessarily strong,” as they implied adverse consequences simply for testifying, and\n\nthat there was no basis in the record to support the government’s concern that Mr. Ruiz-\n\nSalazar would commit perjury. Id. at 1279. Finally, the district court found that, but for\n\nMs. Morehead’s intimidation, Mr. Ruiz-Salazar would have testified. Id. Thus, the\n\ndistrict court concluded that Mr. Orozco’s Sixth Amendment right to present a defense\n\nhad been violated. Id. at 1281.\n\n After reaching that finding, the district court turned to the remedy. It first\n\ndetermined that a new trial would not adequately remedy the violation because Mr. Ruiz-\n\nSalazar was still awaiting sentencing, and he would still have feared adverse\n\nconsequences in his WDMO case. Id. at 1282 & n.86. In addition, the district court\n\nnoted that he had been convicted of a felony in his WDMO case in the interim, and that\n\nhe would now be subject to impeachment on that conviction. Id. at 1282. Accordingly, it\n\n\n\n2\n The evidence consisted of over 200 pictures that Ms. Stimec-Smart testified were hers,\n4 Aplt. App. 701–06, that were stored on a SIM card recovered from the pink nylon case.\n2 Aplt. App. 110–12. The government argued that its late disclosure was inadvertent, as\nit learned only shortly before trial that the evidence had been stored as personal property\nrather than as evidence, and that the government had not believed it was material or\nexculpatory. 2 Aplt. App. 111–13. The district court continued the trial to give Mr.\nOrozco time to make use of the newly available evidence. Id. at 120.\n 8\n\fvacated Mr. Orozco’s convictions and dismissed the underlying counts in the superseding\n\nindictment with prejudice. Id. at 1283. The government timely appealed.\n\n\n Discussion\n\n The government raises two issues on appeal. First, it argues that the district court\n\nclearly erred in finding that Mr. Orozco’s Sixth Amendment right to a defense was\n\nviolated by Ms. Morehead’s conduct and Mr. Ruiz-Salazar’s subsequent refusal to testify.\n\nAplt. Br. at 27–47. Second, it argues that the district court abused its discretion by\n\ndismissing the indictment with prejudice rather than ordering a new trial. Id. at 48–56.\n\nWe hold that the district court did not clearly err in finding that Mr. Orozco’s Sixth\n\nAmendment right was violated, but we hold that the district court abused its discretion in\n\ndismissing the indictment with prejudice, thereby precluding a retrial.\n\n Under Fed. R. Crim. P. 33(a), the district court may vacate a judgment and grant a\n\nnew trial “if the interest of justice so requires.” We review such decisions for abuse of\n\ndiscretion. United States v. Durham, 902 F.3d 1180, 1226 (10th Cir. 2018). A trial court\n\nabuses its discretion if its decision is “arbitrary, capricious, whimsical, or manifestly\n\nunreasonable.” United States v. Jordan, 806 F.3d 1244, 1252 (10th Cir. 2015) (quoting\n\nUnited States v. McCullough, 457 F.3d 1150, 1167 (10th Cir. 2006)). In reviewing for\n\nabuse of discretion, we review legal conclusions de novo and factual findings for clear\n\nerror. Jordan, 806 F.3d at 1252. Factual findings can be found clearly erroneous if “they\n\nhave no basis in the record,” id., or if this court “is left with the definite and firm\n\nconviction that a mistake has been committed.” United States v. Lopez, 372 F.3d 1207,\n\n\n 9\n\f1210 (10th Cir. 2004) (quoting United States v. Colonna, 360 F.3d 1169, 1175 (10th Cir.\n\n2004)). Under these standards, we cannot conclude the district court clearly erred in\n\nfinding that Mr. Orozco’s Sixth Amendment rights were violated, nor can we conclude\n\nthat the district court abused its discretion in granting Mr. Orozco’s motion for a new trial\n\nand in vacating his convictions. Although the government argues that the district court\n\nrelied upon a mistaken premise (that the government did not deny the occurrence or\n\ncontent of Ms. Morehead’s comments to Ms. Spradlin), a review of the entire opinion\n\nmakes it clear that the district court understood that the characterization was disputed and\n\nexpressly rejected the government’s position. Orozco, 291 F. Supp. 3d at 1277–78. Nor\n\ncan we can conclude that the Sixth Amendment error was harmless beyond a reasonable\n\ndoubt, notwithstanding the abundant evidence against Mr. Orozco, including his\n\nconfession.\n\n We hold, however, that the district court abused its discretion in dismissing the\n\nsuperseding indictment with prejudice rather than ordering a new trial. As with decisions\n\nto grant a new trial, we review a district court’s dismissal of an indictment for abuse of\n\ndiscretion. United States v. Bergman, 848 F.3d 928, 931 (10th Cir. 2017). Importantly,\n\nremedies for Sixth Amendment violations should be “tailored” and not “unnecessarily\n\ninfringe on competing interests.” United States v. Morrison, 449 U.S. 361, 364 (1981).\n\nEven more importantly, dismissal is “an extraordinary remedy” and is only used in cases\n\nof serious and flagrant prosecutorial misconduct. United States v. Apodaca, 820 F.2d\n\n348, 349 (10th Cir. 1987). Because it is an extraordinary remedy, a district court may\n\n\n\n 10\n\fonly dismiss an indictment when the defendant has been prejudiced. United States v.\n\nVilla-Chaparro, 115 F.3d 797, 804 (10th Cir. 1997).\n\n Despite the district court’s recognition that dismissing an indictment is an extreme\n\nremedy, Orozco, 291 F. Supp. 3d at 1281, it nevertheless dismissed the indictment with\n\nprejudice after finding that “a new trial would not be an adequate remedy.” Id. at 1282.\n\nThis decision failed to balance the competing interests that Morrison requires and failed\n\nto consider more narrowly tailored remedies.\n\n We observe that less drastic remedies were available to address the district court’s\n\nconcerns. The district court feared that Mr. Ruiz-Salazar felt that his testifying might\n\nsubject him to adverse consequences in his WDMO case. Orozco, 291 F. Supp. 3d\n\nat 1282. To address this concern, the district court could have delayed Mr. Orozco’s trial\n\nuntil after Mr. Ruiz-Salazar was sentenced in his WDMO case. At the time the district\n\ncourt dismissed the indictment, Mr. Ruiz-Salazar was scheduled to be sentenced only two\n\nmonths later. See Docket Sheet, United States v. Ruiz-Salazar, No. 15-cr-06004-DGK-7\n\n(W.D. Mo. Oct. 31, 2017), ECF No. 618. Although we would not require district courts\n\nto defer to other districts for scheduling matters, cf. Garza v. Davis, 596 F.3d 1198, 1205\n\n(10th Cir. 2010) (district courts are afforded “great discretion” regarding control of the\n\ndocket and parties), the district court should have considered this more tailored option\n\nbefore resorting to such an extraordinary remedy.\n\n The district court also noted that even if Mr. Ruiz-Salazar was willing to testify at\n\nretrial, he was subsequently convicted in the WDMO case, and he would therefore be\n\nsubject to impeachment under Fed. R. Evid. 609(a)(1)(A). Id. Again, however, the\n\n 11\n\fdistrict court could have pursued a more tailored and less drastic remedy by prohibiting\n\nthe government from impeaching Mr. Ruiz-Salazar using his recent conviction.3 Each of\n\nthese remedies would have mitigated any harms produced by Ruiz-Salazar’s decision not\n\nto testify in the first trial, and they would not have infringed unnecessarily on the\n\ngovernment’s interest in prosecuting criminal behavior.\n\n The district court also found that Ms. Morehead acted in bad faith, Orozco, 291 F.\n\nSupp. 3d at 1278–79, and it justified dismissing the indictment as a means through which\n\nto deter such conduct. See id. at 1281–83. While we recognize that a district court is\n\noften better positioned to determine whether a litigant has acted in bad faith, and it has\n\nthe discretion to sanction litigants as it sees fit, the district court failed to tailor its remedy\n\nto the violation it found. The bad faith conduct found by the district court did not justify\n\nimposing a remedy that failed to “preserv[e] society’s interest in the administration of\n\ncriminal justice.” Morrison, 449 U.S. at 364; cf. United States v. Gonzales, 164 F.3d\n\n1285, 1292–93 (10th Cir. 1999) (agreeing with the district court’s finding that the\n\ngovernment’s conduct was the product of flagrant bad faith but concluding that the\n\ndistrict court nevertheless abused its discretion in imposing the most severe available\n\nsanction for discovery violations). The district court never addressed why more narrowly\n\ntailored sanctions would not have provided a sufficient deterrent effect, and we therefore\n\n\n3\n Rule 609 provides that such a conviction “must be admitted subject to rule 403.” Fed.\nR. Evid. 609(a)(1)(A) (emphasis added). Rule 403 in turn allows for exclusion of\nevidence if its probative value is substantially outweighed by the danger of, inter alia,\nunfair prejudice. Fed. R. Evid. 403. The district court thus could have excluded Ruiz-\nSalazar’s subsequent conviction under the Rules based on any unfair prejudice to Mr.\nOrozco resulting from the change in circumstances.\n 12\n\fconclude that the government should be permitted to retry Mr. Orozco. On remand, the\n\ndistrict court should endeavor to tailor any restrictions on the government to curing the\n\nSixth Amendment violation.\n\n The dissent contends that the district court should be allowed to consider the\n\nremedy of dismissal with prejudice based upon flagrant misconduct. We are convinced,\n\nhowever, that dismissing the indictment with prejudice would be an abuse of discretion.\n\nThe prejudice resulting from Mr. Ruiz-Salazar’s decision not to testify must be placed in\n\ncontext. At best, Mr. Ruiz-Salazar’s testimony would impeach Mr. Ruiz on a collateral\n\nmatter — namely, that Mr. Ruiz-Salazar, not Mr. Ruiz, sold Mr. Orozco the chameleon-\n\ncolored Camaro. Mr. Ruiz-Salazar was not going to contradict any of Mr. Ruiz’s\n\ntestimony that Mr. Ruiz had sold or given Mr. Orozco methamphetamine for resale on\n\nmultiple occasions. Mr. Ruiz-Salazar’s testimony would have been entirely excludable.\n\nSee United States v. Walker, 930 F.2d 789, 791–92 (10th Cir. 1991). Moreover,\n\nsubstantial other evidence incriminated Mr. Orozco, including the Eastlands’ testimony\n\nthat they bought user quantities (and occasionally larger quantities) of methamphetamine\n\nfrom Mr. Orozco. This circuit has in the past concluded that employing the most extreme\n\nremedy to cure a violation is an abuse of discretion and then remanded for the district\n\ncourt to select among less extreme alternatives. See, e.g., United States v. Gonzales, 164\n\nF.3d 1285, 1292–93 (10th Cir. 1999) (“[W]e find it necessary to remand to the district\n\ncourt for consideration of less severe sanctions.”). We also note that the cases relied\n\nupon by the dissent (which concern grand jury proceedings), United States v. Pino, 708\n\nF.2d 530, 531 (10th Cir. 1983), and United States v. Apodaca, 820 F.2d 348, 349 (10th\n\n 13\n\fCir. 1987), each considered the degree of any impairment of the constitutional function of\n\nthe proceedings and rejected dismissal.\n\n AFFIRMED in part, REVERSED in part, and REMANDED.\n\n\n\n\n 14\n\f18-3003, United States v. Orozco", "author": "KELLY, Circuit Judge."}, {"type": "concurrence", "author": "LUCERO", "text": "LUCERO, J., concurring in part and dissenting in part.\n My esteemed colleagues and I are constant in our view that the district court\n\nneither erred in finding a violation of Orozco’s Sixth Amendment right to present a\n\ndefense, nor abused its discretion in vacating his conviction and granting his motion for a\n\nnew trial. Further, we agree that the district court failed to conduct the proper balancing\n\nanalysis required by United States v. Morrison, 449 U.S. 361, 364 (1981), in deciding to\n\ndismiss the indictment with prejudice. We agree that we must remand to require the\n\ndistrict court to conduct the balancing analysis.\n\n Given such agreement, why do I dissent? Separating us is what I consider to be\n\nthe majority’s impermissible decision to limit the remedies available to the district court\n\nto correct the Sixth Amendment violation on remand. Guiding authorities, clearly\n\nestablished by the Supreme Court and our circuit, provide that dismissing the indictment\n\nwith prejudice is an allowable remedy for appropriate cases of flagrant prosecutorial\n\nmisconduct. My colleagues leave the district court free to pursue remedies it finds\n\nappropriate to correct the Sixth Amendment violation except for dismissing the\n\nindictment with prejudice. In doing so, the majority goes farther than allowed by\n\nprecedent. I dissent from this limitation on the remedies the district court may consider\n\non remand, and would allow the district court the discretion to impose any remedy it\n\nfinds necessary after conducting the Morrison balancing analysis and our circuit’s\n\nseriousness analysis under United States v. Apodaca. 820 F.2d 348, 349 (10th Cir. 1987).\n\nThis omission is, after all, why we are reversing.\n\f I\n\n Morrison does not proscribe the discretion of trial courts, it merely prescribes that\n\n“[c]ases involving Sixth Amendment deprivations are subject to the general rule that\n\nremedies should be tailored to the injury suffered from the constitutional violation and\n\nshould not unnecessarily infringe on competing interests,” including “society’s interest in\n\nthe administration of justice.” 449 U.S. at 364. Accordingly, in selecting a remedy for a\n\nSixth Amendment violation, courts must “identify and neutralize the taint [of the\n\nviolation] by tailoring relief appropriate in the circumstances.” Id. at 365. Consistent\n\nwith this standard, our court has described dismissal of an indictment with prejudice as\n\n“an extraordinary remedy, generally reserved for serious cases of prosecutorial\n\nmisconduct.” Apodaca, 820 F.2d at 349; see also United States v. Pino, 708 F.2d 523,\n\n530 (10th Cir. 1983) (“The remedy of dismissal of an indictment with prejudice on\n\n[prosecutorial misconduct] grounds is an extraordinary one.”).\n\n I agree with the majority that the district court did not adequately consider more\n\nnarrowly tailored remedies and did not balance the need to remedy the constitutional\n\nviolation with competing social interests as required by Morrison. 449 U.S. at 364. So\n\nfar, so good. But then, usurping the district court’s discretion, the majority jumps to the\n\nconclusion that dismissal with prejudice as a remedy is precluded as a matter of law.\n\nThis leap is unacceptable.\n\n II\n\n Unlike the majority, I would not preclude the district court from dismissing the\n\nindictment with prejudice. We generally review a district court’s dismissal of an\n\n 2\n\findictment for abuse of discretion. United States v. Bergman, 848 F.3d 928, 931 (10th\n\nCir. 2017). In my view, it is premature to hold as a matter of law that the district court\n\nwill have abused its discretion should it dismiss the indictment with prejudice after\n\ncomplying with Morrison balancing and our circuit’s seriousness analysis under\n\nApodaca. 820 F.2d at 349.\n\n We ordinarily decline to decide a matter in the first instance if that matter is\n\ncommitted to the sound discretion of the trial court. See Surefoot LC v. Sure Foot Corp.,\n\n531 F.3d 1236, 1248 (10th Cir. 2008). “[T]o do so would overstep the bounds of our\n\nreview for abuse of discretion and enter the realm of de novo review.” Fox v. Maulding,\n\n16 F.3d 1079, 1082 (10th Cir. 1994). Although we may make such initial determinations\n\nin some instances, see Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994), this case\n\ndoes not require us to depart from the general rule. Having observed the trial, and the\n\nconduct of the prosecutor in this case, the district court is uniquely situated to conduct the\n\nproper balancing under Morrison. 449 U.S. at 364; see generally Davoll v. Webb, 194\n\nF.3d 1116, 1146 (10th Cir. 1999) (noting that the trial court “is in the best position to\n\ndetermine the facts of the case, to appreciate the consequences of alternative methods of\n\nresolving the issues of the case and [] is in the best position to select the most efficient\n\nmethod for their resolution” (quotation omitted)).\n\n Our circuit recognizes that “flagrant misconduct” may warrant dismissal of an\n\nindictment with prejudice if necessary “to insure proper standards of conduct by the\n\nprosecution.” Pino, 708 F.3d at 530, 531; see also Apodaca, 820 F.2d at 349 (stating that\n\ndismissal of an indictment is “reserved for cases of serious prosecutorial misconduct”).\n\n 3\n\fWe were not persuaded in those cases that such a remedy was necessary, but we clearly\n\ncontemplated that there can be prosecutorial misconduct flagrant and serious enough to\n\nwarrant dismissal with prejudice.\n\n I would allow the district court on remand to determine if the prosecutor’s conduct\n\nin this case amounts to such flagrant misconduct. The majority does not purport to\n\ndisturb the district court’s findings of prejudice to defendant, or bad faith on the part of\n\nthe prosecutor. Intimidating a witness to dissuade him from testifying through improper\n\nmeans can result in criminal sanctions. See 18 U.S.C. § 1512(b)(2)(A) (making it a crime\n\nto “knowingly use[] intimidation, threaten[], or corruptly persuade[] another person . . .\n\nwith intent to . . . cause or induce any person to . . . withhold testimony”); U.S.S.G.\n\n§ 3C1.1 & app. n.4(A) (imposing a sentencing enhancement for “threatening,\n\nintimidating, or otherwise unlawfully influencing a . . . witness”). My colleagues do not\n\ndelve into the flagrancy or seriousness of the misconduct. Properly, that should be left to\n\nthe district court.\n\n As the Supreme Court has explained, a federal prosecutor\n\n is the representative not of an ordinary party to a controversy, but of a\n sovereignty whose obligation to govern impartially is as compelling as its\n obligation to govern at all; and whose interest, therefore, in a criminal\n prosecution is not that it shall win a case, but that justice shall be done. As\n such, he is in a peculiar and very definite sense the servant of the law, the\n twofold aim of which is that guilt shall not escape or innocence suffer. He\n may prosecute with earnestness and vigor-indeed, he should do so. But,\n while he may strike hard blows, he is not at liberty to strike foul ones. It is\n as much his duty to refrain from improper methods calculated to produce a\n wrongful conviction as it is to use every legitimate means to bring about a\n just one.\n\n\n\n 4\n\fBerger v. United States, 295 U.S. 78, 88 (1935). In weighing the remedy necessary to\n\nresolve the constitutional violation present in this case, we must keep in mind those\n\nheightened duties. Because this court does not have the benefit of the district court’s\n\nanalysis on the degree of flagrancy present and the factors laid out by the Supreme Court\n\nin Morrison, 449 U.S. at 364, I would reverse and remand without limitations on the\n\nremedies the district court may consider.\n\n\n\n\n 5"}]}	LUCERO	SEYMOUR	KELLY	1	{}	4	0	2	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4593909/	Published	1	1	0	1	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,593,939	BANNER BANK, a Washington Banking Corporation, Plaintiff-Appellee/Cross-Appellant, v. FIRST AMERICAN TITLE INSURANCE COMPANY, a California Corporation, Defendant-Appellant/Cross-Appellee.	Banner Bank v. First American Title Insurance	2019-02-26	17-4098; 17-4112; 18-4035 & 18-4037	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Phillips, Kelly, Carson", "parties": "", "opinions": [{"author": "KELLY, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 26, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n BANNER BANK, a Washington banking\n corporation,\n\n Plaintiff - Appellee/Cross -\n Appellant,\n Nos. 17-4098, 17-4112,\n v. 18-4035 & 18-4037\n\n FIRST AMERICAN TITLE INSURANCE\n COMPANY, a California corporation,\n\n Defendant - Appellant/Cross -\n Appellee.\n _________________________________\n\n Appeals from the United States District Court\n for the District of Utah\n (D.C. No. 2:16-CV-00200-BSJ)\n _________________________________\n\nScott E. Gizer (Sophia S. Lau, of Early Sullivan Wright Gizer & McRae LLP; Los\nAngeles, California, and Sara E. Bouley of Action Law LLC, Salt Lake City, Utah, with\nhim on the briefs), Early Sullivan Wright Gizer & McRae LLP; Los Angeles, California,\nfor Defendant - Appellant/Cross-Appellee.\n\nTroy L. Booher, (Michael D. Zimmerman, Freyja R. Johnson and Dick J. Baldwin of\nZimmerman, Booher, with him on the briefs), Salt Lake City, Utah, for Plaintiff -\nAppellee/Cross-Appellant.\n _________________________________\n\nBefore PHILLIPS, KELLY, and CARSON, Circuit Judges.\n _________________________________\n\nKELLY, Circuit Judge.\n _________________________________\n\f Defendant-Appellant and Cross-Appellee First American Title Insurance Co.\n\nappeals from the district court’s orders granting summary judgment in favor of and\n\nattorneys’ fees to Plaintiff-Appellee and Cross-Appellant Banner Bank (“the Bank”1).\n\nThe district court held that First American had a duty to defend and indemnify its insured\n\n(the Bank), breached the implied covenant of good faith and fair dealing, and was\n\nresponsible for attorneys’ fees in this case. This resulted in an award of damages\n\n($675,000) plus attorneys’ fees in an underlying lawsuit ($159,288), and consequential\n\ndamages of attorneys’ fees in this case ($130,411.50). The Bank cross-appeals in the\n\nevent that the award of consequential damages was procedurally incorrect. Our\n\njurisdiction arises under 28 U.S.C. § 1291 and we reverse.\n\n\n\n Background\n\n Wendell Jacobson was an insider of MSI, Inc., through which he controlled two\n\nrelated LLCs. To secure loans from the Bank for his businesses, Mr. Jacobson conveyed\n\ndeeds of trust to the Bank as collateral. See 1 J.A. 39–69. The Bank then purchased a\n\ntitle insurance policy from First American to cover those deeds of trust. See id. at 71–94.\n\nUnfortunately for the Bank, Mr. Jacobson was apparently using his businesses to operate\n\na Ponzi scheme. When the Securities and Exchange Commission filed an enforcement\n\n\n1\n For simplicity’s sake, Banner Bank and its predecessors are referred to as “the Bank”\nthroughout. The title policy was originally issued to Far West Bank, one name under\nwhich AmericanWest Bank did business in Utah prior to its merger with Banner Bank.\nSee 1 J.A. 71; Aplt. Br. at 13 n.2; Aplee. Br. at 6 n.1.\n 2\n\faction against Mr. Jacobson, a Receiver was appointed to represent his creditors. Id. at\n\n114–15. The Receiver then filed an action against the Bank challenging the conveyances.\n\nId. at 114–17. Relying on the title policy, the Bank requested that First American defend\n\nit in the Receiver’s action. Id. at 112. First American refused and explained that the\n\nReceiver’s action fell outside the coverage of the policy. Id. at 134. The Bank responded\n\nto First American’s denial and disputed First American’s basis for refusing to defend. Id.\n\nat 136–38. First American reaffirmed its conclusion that it owed no duty to defend. Id.\n\nat 140–41. The Bank and the Receiver eventually entered a settlement for $675,000. Id.\n\nat 100–06. The Bank then brought this diversity action against First American.\n\n The Bank’s complaint contained five claims: (1) breach of contract for failure to\n\nindemnify, (2) breach of contract for failure to defend, (3) breach of the implied covenant\n\nof good faith and fair dealing, (4) contingent breach of contract or breach of implied\n\ncovenant, and (5) declaratory relief. Id. at 26–32. On cross-motions for summary\n\njudgment, the district court granted summary judgment in favor of the Bank on its claims\n\nfor (1) breach of contract for failure to indemnify, (2) breach of contract for failure to\n\ndefend, and (3) declaratory relief. 12 J.A. 2815. The district court held that the claim for\n\nbreach of the implied covenant of good faith and fair dealing was subsumed into its\n\nfindings on the breach of express terms, and it found that it did not need to decide the\n\ncontingent breach of contract claim. Id. The district court entered judgment consistent\n\nwith those findings, but it did not rule on the Bank’s other damages arguments related to\n\nprejudgment interest or consequential damages. Id. at 2816.\n\n\n\n 3\n\f First American filed a notice of appeal to this court on June 7, 2017, id. at 2841;\n\nthe Bank filed its own notice of appeal (along with a motion to extend time to file the\n\nnotice) on July 13, 2017. Id. at 2859–67. Meanwhile in the district court, the Bank (1)\n\nrenewed its motion for attorneys’ fees from its summary judgment motion; (2) moved, in\n\nthe alternative, under Rule 54(d) for attorneys’ fees; and (3) moved under Rule 60 to set\n\naside the judgment to ensure the district court kept jurisdiction until the damages issue\n\nwas resolved. Id. at 2868–79.\n\n On November 7, 2017, we ordered a limited remand for the district court to\n\naddress the Bank’s request for attorneys’ fees. Order, Banner Bank v. First Am. Title Ins.\n\nCo., Nos. 17-4098 & 17-4112 (10th Cir. Nov. 7, 2017), ECF No. 10511740. On remand,\n\nthe district court awarded the Bank attorneys’ fees under its renewed motion for\n\nattorneys’ fees and denied the motions under Rule 54(d) and Rule 60. 13 J.A. 3154–56.\n\nFirst American filed another notice of appeal from that decision. Id. at 3158–60.\n\n\n\n Discussion\n\n We review a summary judgment decision de novo, and we use the same standard\n\nthe district court applied to determine if summary judgment was warranted. See Birch v.\n\nPolaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). In other words, we ask if the\n\nmovant demonstrated there was no genuine dispute as to any material fact and the movant\n\nwas entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The factual\n\nrecord and reasonable inferences that may be drawn from it are viewed in the light most\n\nfavorable to the nonmoving party. See Birch, 812 F.3d at 1251. Cross-motions for\n\n 4\n\fsummary judgment are treated as two individual motions for summary judgment and held\n\nto the same standard, with each motion viewed in the light most favorable to its\n\nnonmoving party.\n\nA. Breach of Contract for Duty to Defend\n\n Under Utah law,2 the duty to defend is determined under the so-called “eight\n\ncorners” rule — the court analyzes only what is contained within the four corners of the\n\npolicy and the four corners of the complaint. See Equine Assisted Growth & Learning\n\nAss’n v. Carolina Cas. Ins. Co., 266 P.3d 733, 735–37 (Utah 2011). A court looks first to\n\nthe policy language defining the scope of the duty to defend; it then looks to the face of\n\nthe complaint and determines if the terms either establish or eliminate a duty to defend.\n\nId.\n\n We begin with the language of the policy. Two provisions are relevant. First, the\n\npolicy includes a list of “covered risks.” Among the covered risks is insurance against\n\nloss or damage “sustained or incurred by the Insured by reason of” “[a] defect in the Title\n\ncaused by,” among other things, “fraud” or “failure of any person or Entity to have\n\nauthorized a transfer or conveyance.” 1 J.A. 81. The covered risks are limited, however,\n\nby the policy’s “exclusions from coverage.” These matters are “expressly excluded from\n\nthe coverage of this policy, and the Company will not pay loss or damage, costs,\n\nattorneys’ fees, or expenses that arise” as a result of one of them. Id. at 82. Among the\n\n\n2\n We understand the parties to agree that Utah state law governs their dispute. See, e.g.,\nAplt. Br. at 17–18 (analyzing Utah law for insurance policy interpretation); Aplee. Br. at\n17 n.2 (same); see also Edens v. Netherlands Ins. Co., 834 F.3d 1116, 1120 (10th Cir.\n2016) (noting that in diversity cases, the substantive law of the forum state governs).\n 5\n\flist of excluded matters is “6. [a]ny claim, by reason of operation of federal bankruptcy,\n\nstate insolvency, or similar creditors’ rights laws, that the transaction creating the lien . . .\n\nis (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any\n\nreason not stated in Covered Risk 13(b) of this policy.” Id.\n\n The parties dispute whether the Receiver’s complaint falls under exclusion 6. We\n\nmust determine whether the Receiver’s complaint is grounded in a “similar creditors’\n\nrights law.” Was the Receiver asserting that the transaction creating the deed of trust was\n\na fraudulent conveyance or fraudulent transfer? If so, then the litigation between the\n\nReceiver and the Bank was excluded from coverage under the policy and First American\n\nhad no duty to defend. If, however, the complaint was ambiguous as to the nature of the\n\nlegal basis for the action, then First American owed a duty to defend at least “until those\n\nuncertainties [could] be resolved against coverage.” Benjamin v. Amica Mut. Ins. Co.,\n\n140 P.3d 1210, 1215 (Utah 2006).\n\n To answer that question, we examine the language of the Receiver’s complaint.\n\nThe complaint’s sole claim for relief was “pursuant to Utah Code Ann. § 25-6-1, et seq.”3\n\n— Utah’s Uniform Voidable Transactions Act (UVTA). 1 J.A. 116. The complaint\n\nalleged that Mr. Jacobson was an insider of two LLCs that obtained loans from the Bank,\n\nthat neither LLC received “reasonably equivalent value” in exchange for the transfer, and\n\nthat Mr. Jacobson’s company MSI, Inc. (through which he controlled the two related\n\n\n\n3\n The relevant statutory provisions have subsequently been renumbered — they begin\nnow at Utah Code Ann. § 25-6-101. See S.B. 58, 62d Leg., Gen. Sess., 2017 Utah Laws\n204.\n 6\n\fLLCs), was “operating as a wide-scale Ponzi scheme” at the time of the transfer. Id. The\n\nReceiver asserted that the transfer “is presumed to have been made with the actual intent\n\nto hinder, delay or defraud creditors” and so the “Receiver [was] entitled to avoid the\n\nTransfer and preserve it for the benefit of MSI’s creditors and investors.” Id.\n\n The most natural reading of the Receiver’s complaint is one to avoid Mr.\n\nJacobson’s transfer of the deeds of trust as a fraudulent conveyance. The action is clearly\n\ntaken pursuant to the UVTA — a creditors’ rights law — and the allegations in the\n\ncomplaint are that Mr. Jacobson was operating a wide-scale Ponzi scheme, and the\n\ntransfer of the deeds was in furtherance of it and to defraud his creditors. The Receiver’s\n\naction falls squarely within the policy’s exception for lawsuits alleging a fraudulent\n\ntransfer or conveyance.\n\n The Bank argues there are multiple ways to read the Receiver’s complaint,\n\nincluding that Mr. Jacobson was merely unauthorized to make the transfer on behalf of\n\nthe LLCs. Under the Bank’s reading, the exclusion does not apply, or at least arguably\n\ndoes not apply. In the face of uncertainty whether the lawsuit is excluded under the\n\npolicy, the Bank argues First American should have defended until any doubts could be\n\nresolved. Aplee. Br. at 19–23. While caution may have counseled First American to\n\ndefend, we disagree with the Bank that the law required it to do so.\n\n First, even if Mr. Jacobson was unauthorized to transfer the deeds of trust — a\n\ncovered event under the policy — that event could still be excluded from coverage if the\n\nunauthorized transfer was part of a fraudulent conveyance. Inclusion of an event on the\n\n“covered risks” is a necessary but not sufficient event for coverage; it also must not fall\n\n 7\n\fwithin an exclusion from coverage. The complaint has to be read as a whole, and the\n\nclear import, indeed the essence of the Receiver’s complaint, is that Mr. Jacobson\n\nengaged in a fraudulent conveyance in order to defraud creditors as part of his Ponzi\n\nscheme. That is an event explicitly excluded from coverage by the policy. Second, while\n\nthe Bank recites case law with the adage “[w]hen in doubt, defend,” Aplee. Br. at 18\n\n(quoting Benjamin, 140 P.3d at 1215), there is little room for doubt about the scope of the\n\nexclusion from coverage here. And when the “language found within the collective\n\n‘eight corners’ of these documents clearly and unambiguously indicates that a duty to\n\ndefend . . . does not exist, the analysis is complete.” Equine, 266 P.3d at 737.\n\nB. Breach of Contract for Duty to Indemnify\n\n Under Utah law, the duty to indemnify is narrower than the duty to defend. If\n\nthere was no duty to defend, there cannot be a duty to indemnify. See Fire Ins. Exch. v.\n\nEstate of Therkelsen, 27 P.3d 555, 561 (Utah 2001); Sharon Steel Corp. v. Aetna Cas. &\n\nSur. Co., 931 P.2d 127, 133 (Utah 1997) (“We have previously held than an insurer’s\n\nduty to defend is broader than its duty to indemnify.”).\n\n The Bank argues that, with the benefit of the settlement agreement, it is now clear\n\nthat the Receiver’s action was a covered event under the policy. According to the Bank,\n\nthe settlement agreement shows that, even if the original complaint was ambiguous, the\n\nactual claim in the Receiver’s action was that Mr. Jacobson was unauthorized to transfer\n\nthe deeds of trust to the Bank on behalf of the LLCs. In the Bank’s view, now that we\n\ncan establish the basis for the suit, First American should be required to indemnify the\n\nBank even if First American did not have a duty to defend initially. We disagree.\n\n 8\n\f First, the Bank’s position is inconsistent with Utah law. The duty to defend is\n\nbroader than the duty to indemnify, but the duty to defend is determined from the face of\n\nthe Receiver’s complaint. If the Receiver’s complaint was not enough to establish a duty\n\nto defend, how could the settlement agreement later create liability for indemnification?\n\nThe Bank’s position reverses the normal timeline, and it would effectively allow the duty\n\nto defend to attach retroactively. Second, we are hesitant to look to the settlement\n\nagreement for guidance because the parties certainly have an incentive to negotiate a\n\nsettlement agreement that will create liability for the insurer, regardless of the true nature\n\nof the action.\n\nC. Breach of Duty of Good Faith and Fair Dealing\n\n First American owed no duty to defend or indemnify the Bank in the Receiver\n\naction. Therefore, First American did not violate the duty of good faith and fair dealing\n\nby denying coverage in response to both of the Bank’s requests for coverage. First\n\nAmerican reached the correct legal conclusion that it did not owe a duty to defend or\n\nindemnify; it reached this conclusion after complying with its duty to “diligently\n\ninvestigate the facts to enable it to determine whether a claim is valid,” “fairly evaluate\n\nthe claim,” and “act promptly and reasonably in rejecting or settling the claim.” Prince v.\n\nBear River Mut. Ins. Co., 56 P.3d 524, 533 (Utah 2002). After its first denial and in\n\nresponse to the second request from the Bank, First American assigned the case to a\n\nsecond claims counsel who found that First American was not obligated to defend or\n\nindemnify the Bank, implicitly rejecting the Bank’s argument that there remained\n\nalternative bases for coverage under the policy regardless of the exclusion for fraudulent\n\n 9\n\ftransfers. 1 J.A. 140–41. First American’s legal duty of good faith and fair dealing did\n\nnot require anything more.4\n\nD. Damages\n\n The district court made three damages awards: (1) for the amount of the Bank’s\n\nsettlement with the Receiver ($675,000), (2) for the amount of attorneys’ fees the Bank\n\nwas required to spend because First American did not defend it in the Receiver’s action\n\n($159,288), and (3) for the amount of attorneys’ fees the Bank spent in this subsequent\n\nlitigation against First American ($130,411.50). See 12 J.A. 2840; 13 J.A. 3155.\n\n The first two damages awards were “general damages,” that is, damages that flow\n\ndirectly or “naturally” from the contract breach itself. See Trans-Western Petroleum, Inc.\n\nv. U.S. Gypsum Co., 379 P.3d 1200, 1202 (Utah 2016). These are damages that arise\n\nunder the policy’s express terms. The third award was for “consequential damages,”\n\nwhich are damages that do not arise directly from the breach of contract but are\n\nnonetheless foreseeable by the parties at the time of contract formation. Trans-Western,\n\n379 P.3d at 1202. The district court granted attorneys’ fees as consequential damages\n\nbecause it found First American had breached the implied term of good faith and fair\n\ndealing in its insurance contract with the Bank. Accordingly, it awarded the Bank the\n\ncost of this subsequent litigation against First American. We have already explained,\n\n\n\n4\n There is no need to wade into the parties’ dispute over the scope of the “fairly\ndebatable” rule and its application in first-party claims versus third-party claims because\nFirst American did not breach any duty it owed to the Bank. Compare Aplt. Br. at 29–31,\nwith Aplee. Br. at 27–29.\n\n 10\n\fhowever, that First American did not breach its duty of good faith and fair dealing, so any\n\naward of damages arising from that implied term is improper. See id. at 1207 (noting that\n\na litigant must show that consequential damages were caused by a contract breach).\n\nBecause it was error to award attorneys’ fees, arguments whether the Bank should have\n\nbeen awarded fees under its renewed motion for attorneys’ fees or under Rule 54(d) are\n\nmoot, and the Bank’s cross-appeal under Rule 60 should be dismissed.\n\n Because we conclude there was no duty to defend or indemnify, nor a breach of\n\nthe implied duty of good faith and fair dealing, the damages awards cannot stand. On\n\nremand, the district court should vacate its orders and judgments to the contrary and enter\n\njudgment in favor of First American.\n\n REVERSED and REMANDED. The Bank’s cross-appeal, number 18-4037, is\n\nDISMISSED.\n\n\n\n\n 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371192/", "author_raw": "KELLY, Circuit Judge."}]}	PHILLIPS	KELLY	CARSON	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4593939/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,594,013	Neil FEINBERG; Andrea E. Feinberg; Kellie McDonald, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.	Feinberg v. Comm'r of Internal Revenue	2019-02-26	18-9005	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Lucero, McHUGH, Moritz", "parties": "", "opinions": [{"author": "McHUGH", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS February 26, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n NEIL FEINBERG; ANDREA E.\n FEINBERG; KELLIE McDONALD,\n\n Petitioners - Appellants,\n\n v. No. 18-9005\n\n COMMISSIONER OF INTERNAL\n REVENUE,\n\n Respondent - Appellee.\n _________________________________\n\n Appeal from the United States Tax Court\n (Tax Court Nos. 10083-13 and 10084-13)\n _________________________________\n\nJames D. Thorburn (Richard Walker with him on the briefs), Thorburn Walker LLC,\nGreenwood Village, Colorado, for Petitioners–Appellants.\n\nFrancesca Ugolini, Tax Division Attorney (Richard E. Zuckerman, Principal Deputy\nAssistant Attorney General, Gilbert S. Rothenberg, Tax Division Attorney, and\nNathaniel S. Pollock, Tax Division Attorney, with her on the briefs), Department of\nJustice, Washington, D.C., for Respondent–Appellee.\n _________________________________\n\nBefore LUCERO, McHUGH, and MORITZ, Circuit Judges.\n _________________________________\n\nMcHUGH, Circuit Judge.\n _________________________________\n\n\n Neil Feinberg, Andrea Feinberg, and Kellie McDonald (collectively, the\n\nTaxpayers) were shareholders in Total Health Concepts, LLC (THC), a Colorado\n\fcompany allegedly engaged in selling medical marijuana. After the Taxpayers claimed\n\nTHC’s income and losses on their tax returns, the IRS conducted an audit and disallowed\n\ncertain deductions under 26 U.S.C. § 280E, which prohibits deductions for businesses\n\nengaged in unlawful trafficking of controlled substances. The IRS then recalculated the\n\nTaxpayers’ tax liability and issued a notice of deficiency for the unpaid balance. The\n\nTaxpayers challenged that determination in the tax court, which affirmed on the basis that\n\nthe Taxpayers had failed to substantiate the business expenses.\n\n Both parties agree the tax court erred by injecting a substantiation issue into this\n\ncase not raised in the notice of deficiency, and then placing the burden for refuting that\n\nclaim on the Taxpayers. But the Commissioner argues we should affirm on the alternative\n\nground that the Taxpayers did not meet their burden of proving the IRS’s determination\n\nthat THC was unlawfully trafficking in a controlled substance was erroneous. The\n\nTaxpayers disagree and contend placing the burden on them would violate their Fifth\n\nAmendment privilege. Because we conclude allocation of the burden of proof does not\n\nconstitute “compulsion” under the Fifth Amendment, and because the Taxpayers have\n\nmade no attempt to meet their evidentiary burden, we affirm the tax court on the\n\nalternative ground that § 280E prohibited the deductions.\n\n I. BACKGROUND\n\n THC was a Colorado limited liability company organized to “promote the\n\ncultivation and sale of medical marijuana products” and was licensed by Colorado to\n\noperate two medical marijuana dispensaries. App. at 3586–87. Ms. McDonald was a\n\nshareholder for tax years 2009–2011, and Mr. Feinberg, who filed joint tax returns with\n\n 2\n\fMs. Feinberg, was a shareholder for tax years 2010–2011. Because THC elected to be\n\ntreated as an S corporation for tax purposes, its income and losses were reported on the\n\nTaxpayers’ individual income tax returns.\n\n The deficiencies identified by the IRS were in the years in which the Taxpayers\n\nreported THC’s income and losses on their individual returns. These deficiencies were\n\nmostly attributable to income adjustments the IRS made after determining THC was\n\nineligible for deductions pursuant to § 280E because THC “operates medical marijuana\n\ndispensaries and marijuana growing facilities,” App. at 41, and was therefore engaged in\n\na trade or business that “consists of trafficking in controlled substances.” As a result, the\n\nIRS disallowed deductions for business expenses otherwise permitted by the Tax Code.\n\nSee 26 U.S.C. § 162(a). During its audit, the IRS also reclassified many of THC’s\n\nclaimed business expenses as Costs of Goods Sold (COGS), resulting in their exclusion\n\nfrom gross income. But because the net upward adjustments to COGS did not exceed the\n\ndisallowed deductions for business expenses, THC’s overall taxable income for the\n\naudited years increased.\n\n The Taxpayers filed a petition with the United States Tax Court seeking\n\nredetermination of the deficiencies. As part of the proceedings, the Taxpayers filed a\n\nmotion in limine seeking a ruling that the Commissioner bore the burden of proving\n\n§ 280E applied. Concluding the Taxpayers had the burden of proving § 280E did not\n\napply, the tax court denied the motion.\n\n During discovery, the IRS issued a request for information about the nature of\n\nTHC’s business. Feinberg v. Comm’r, 808 F.3d 813, 814 (10th Cir. 2015) [hereinafter\n\n 3\n\fFeinberg I]. The Taxpayers resisted the request and asserted their Fifth Amendment\n\nprivilege against self-incrimination. Id. at 814–15. The IRS responded by filing a motion\n\nto compel production, which the tax court granted. Id. at 815.\n\n The Taxpayers next sought to enforce their Fifth Amendment privilege through a\n\nwrit of mandamus filed in this court. Id. We noted the tax court proceedings “took an\n\nespecially curious turn” when the Commissioner sought to compel discovery because\n\n“[i]n tax court, after all, it’s the petitioners who carry the burden of showing the IRS\n\nerred in denying their deductions—and by invoking the privilege and refusing to produce\n\nmaterials that might support their deductions the petitioners no doubt made their task just\n\nthat much harder.” Id. We then denied the writ, concluding the Taxpayers’ Fifth\n\nAmendment privilege could be protected by an appeal in the normal course. Id. at 816.\n\n After the ruling in Feinberg I, the Commissioner abandoned the discovery request\n\nand instead filed a motion for summary judgment. The tax court denied the motion\n\nbecause “there [were] material issues of fact in dispute.” App. at 2227. The parties\n\nstipulated that the two issues for trial were (1) whether the Taxpayers have “substantiated\n\nthat they should be allowed [COGS] greater than those allowed” by the IRS’s\n\nexamination report and (2) whether the IRS “properly disallowed business expense\n\ndeductions pursuant to section 280E.” Id. at 3586.\n\n After trial, the tax court concluded the Taxpayers had failed to substantiate higher\n\nCOGS. But the tax court refused to consider whether § 280E applied to the business\n\nexpenses, concluding instead that the Taxpayers failed to substantiate any of the business\n\nexpenses for which the deductions were disallowed. The Taxpayers filed a motion for\n\n 4\n\freconsideration, arguing the tax court should not have relied on the Taxpayers’ failure to\n\nsubstantiate their expenses because substantiation was not a basis for the IRS disallowing\n\nthe deduction. The Commissioner agreed and urged the tax court to consider the § 280E\n\narguments. The tax court denied the motion for reconsideration, and the Taxpayers\n\nappealed. Exercising jurisdiction pursuant to 26 U.S.C. § 7482(a)(1), we affirm, but on\n\ndifferent grounds than those relied on by the tax court.\n\n II. DISCUSSION\n\n We begin our analysis of the issues on appeal with a discussion of the applicable\n\nstandard of review. We then pause to provide legal context for our review. Turning next\n\nto the ground on which the tax court relied, we consider whether judgment against the\n\nTaxpayers was warranted by their failure to substantiate their business expenses.\n\nConcluding that it was not, we address the Commissioner’s argument that judgment in its\n\nfavor can be affirmed on the alternative ground that the Taxpayers failed to disprove the\n\napplicability of § 280E. In doing so, we reject the Taxpayers’ argument that placing the\n\nburden of proof on them to disprove their business is engaged in the trafficking of a\n\ncontrolled substance violates their Fifth Amendment right against self-incrimination. And\n\nbecause the Taxpayers offered no evidence that THC was engaged in a business other\n\nthan trafficking, we affirm the tax court’s decision upholding the deficiency.\n\n A. Standard of Review\n\n “We review Tax Court decisions ‘in the same manner and to the same extent as\n\ndecisions of the district courts in civil actions tried without a jury.’” Anderson v. Comm’r,\n\n62 F.3d 1266, 1270 (10th Cir. 1995) (quoting 26 U.S.C. § 7482(a)(1)). Therefore, “[w]e\n\n 5\n\freview the Tax Court’s factual findings under the clearly erroneous standard and review\n\nits legal conclusions de novo.” Id.\n\n B. Legal Background\n\n The Sixteenth Amendment grants Congress the power “to lay and collect taxes on\n\nincomes, from whatever source derived.” U.S. Const. amend. XVI. The Internal Revenue\n\nCode differentiates between two types of income: “‘gross income’ and ‘taxable income.’”\n\nAlpenglow Botanicals, LLC v. United States, 894 F.3d 1187, 1199 (10th Cir. 2018). Gross\n\nincome includes “all income from whatever source derived, including . . . [g]ross income\n\nderived from business.” Id. (quoting 26 U.S.C. § 61(a)). “Congress has the unquestioned\n\nconstitutional and statutory authority to tax gross income.” Id. But “[t]o ensure taxation\n\nof income rather than sales, the ‘cost of goods sold’ is a mandatory exclusion from the\n\ncalculation of a taxpayer’s gross income.” Id.\n\n Taxable income, on the other hand, “is the taxpayer’s ‘gross income minus the\n\ndeductions allowed’ by statute.” Id. (quoting 26 U.S.C. § 63(a)). For example, businesses\n\nmay deduct “all the ordinary and necessary expenses paid or incurred during the taxable\n\nyear in carrying on any trade or business.” 26 U.S.C. § 162(a). But deductions “are\n\nmatters of legislative grace specifically authorized by statute, and Congress has\n\nunquestioned power to condition, limit, or deny deductions from gross income in arriving\n\nat the net which is to be taxed.” Alpenglow, 894 F.3d at 1199–1200 (citations omitted)\n\n(internal quotation marks omitted). One such limitation appears in 26 U.S.C. § 280E,\n\nwhich prohibits deductions\n\n\n\n 6\n\f for any amount paid or incurred during the taxable year in carrying on any\n trade or business if such trade or business (or the activities which comprise\n such trade or business) consists of trafficking in controlled substances\n (within the meaning of schedule I and II of the Controlled Substances Act)\n which is prohibited by Federal law or the law of any State in which such\n trade or business is conducted.\n\nDespite its legality in many states, marijuana is still a schedule I “controlled substance”\n\nunder federal law. 21 U.S.C. § 812(c)(Schedule I)(c)(10); Green Sol. Retail, Inc. v.\n\nUnited States, 855 F.3d 1111, 1113 (10th Cir. 2017). And although the Justice\n\nDepartment did not criminally pursue dispensaries acting in accordance with state law\n\nduring the relevant time period, “the IRS . . . show[ed] no similar inclination to overlook\n\nfederal marijuana distribution crimes.” Alpenglow, 894 F.3d at 1193 (internal quotation\n\nmarks omitted).\n\n C. Substantiation of Business Expenses\n\n The parties both contend the tax court erred in denying the business expense\n\ndeductions for failure to substantiate them under § 162 because the IRS based the\n\ndeficiency notice solely on § 280E. We agree.\n\n A notice of deficiency must “describe the basis for, and identify the amounts (if\n\nany) of, the tax due.” 26 U.S.C. § 7522. In tax court, the petitioner usually bears the\n\nburden of proof, T.C. Rule 142(a), including the burden of proving the IRS incorrectly\n\ndetermined a deficiency provided in the notice. See Feinberg I, 808 F.3d at 815 (“[I]t is\n\nthe petitioners who carry the burden of showing the IRS erred in denying their\n\ndeductions . . . .”). But, if there is a “new matter” raised in the tax court that was not\n\nincluded in the deficiency notice, the burden is on the respondent. Id. “A new theory that\n\n\n 7\n\fis presented to sustain a deficiency is treated as a new matter when it either alters the\n\noriginal deficiency or requires the presentation of different evidence.” Shea v. Comm’r,\n\n112 T.C. 183, 191 (1999) (quoting Wayne Bold & Nut Co. v. Comm’r, 93 T.C. 500, 507\n\n(1989)).\n\n Here, the IRS deficiency notice determined THC was engaged in unlawful\n\ntrafficking and disallowed its business deductions under § 280E. But the tax court upheld\n\nthe deficiency based on THC’s failure to substantiate its business expenses. Because\n\nproving THC was not engaged in unlawful trafficking requires presentation of different\n\nevidence than substantiating the business expenses, the substantiation theory constitutes a\n\nnew matter. The burden of proof on that new matter, and thus any failure of proof, falls\n\non the Commissioner, as the respondent, not on the Taxpayers. As a result, the tax court\n\nerred by affirming the denial of the deductions based on the Taxpayers’ failure to adduce\n\nevidence to substantiate the expenses.\n\n D. Section 280E\n\n Despite the tax court’s error, the Commissioner argues this court may affirm on\n\nthe alternative ground that the Taxpayers failed to meet their burden of proving the IRS\n\nerred in denying the deductions based on § 280E. This court has “discretion to affirm on\n\nany ground adequately supported by the record.” Elkins v. Comfort, 392 F.3d 1159, 1162\n\n(10th Cir. 2004). “In exercising that discretion [the court] consider[s] whether the ground\n\nwas fully briefed and argued here and below, whether the parties have had a fair\n\nopportunity to develop the factual record, and whether, in light of factual findings to\n\n\n\n\n 8\n\fwhich we defer or uncontested facts, [the court’s] decision would involve only questions\n\nof law.” Id. (citations omitted) (internal quotation marks omitted).\n\n The Taxpayers do not object to this court deciding the question in the first\n\ninstance. But they contend that requiring them to bear the burden of proving the IRS\n\nerred in applying § 280E violates their Fifth Amendment privilege against\n\nself-incrimination. The Taxpayers further argue that if the burden is properly assigned to\n\nthe IRS, it must bear the consequences of any failure of proof. The parties presented these\n\nissues both to this court and to the tax court, had a fair opportunity to develop the factual\n\nrecord, and are not asking this court to make any factual determinations. Therefore, we\n\nwill consider on appeal the alternative ground that the deficiency is justified by § 280E.\n\n To begin, we address the Taxpayers’ contention that requiring them to prove the\n\nIRS erred in applying § 280E violates their Fifth Amendment privilege against\n\nself-incrimination. Concluding the burden does not violate the Fifth Amendment, we next\n\nconsider whether the Taxpayers met their burden to prove § 280E is inapplicable.\n\n Fifth Amendment Challenge\n\n The Taxpayers claim that assigning them the burden of proving the IRS erred in\n\napplying § 280E to THC would violate their Fifth Amendment privilege. In Feinberg I,\n\nthis court rejected the Taxpayer’s motion for a writ enjoining the tax court from\n\ncompelling the production of documents because we concluded the Fifth Amendment\n\nclaims could be addressed on appeal after final judgment. 808 F.3d at 818. In predicting\n\nsome of the more difficult Fifth Amendment questions that might arise on appeal, we\n\nexplained:\n\n 9\n\f [I]f the petitioners stand on their privilege we would face the difficulty of\n separating out a permissible adverse inference . . . from an impermissible\n sanction. . . . Similarly, if the petitioners choose to produce the discovery\n under compulsion we might have to confront the question whether any\n error by the tax court in ordering production was harmless and so beyond\n our power to remedy after final judgment.\n\nId. at 817. But none of those concerns came to fruition. The Taxpayers did not produce\n\ndiscovery under compulsion. Nor did the tax court impose a sanction for the Taxpayers’\n\nfailure to do so. Instead, the case went to trial without any additional discovery and with\n\nthe Taxpayers bearing the burden of proving the IRS erred in applying § 280E.\n\n Recent pronouncements from this court confirm that taxpayers normally bear the\n\nburden of proving the IRS erred in determining a business was engaged in unlawful\n\ntrafficking. See Feinberg I, 808 F.3d at 815 (“In tax court . . . it’s the petitioners who\n\ncarry the burden of showing the IRS erred in denying their deductions . . . .”); Alpenglow,\n\n894 F.3d at 1198 (“But in an action to recover taxes paid to the IRS, the taxpayer has the\n\nburden to show not merely that the IRS’s assessment was erroneous, but also the amount\n\nof the refund to which the taxpayer is entitled. Under this rule, the burden falls on [the\n\ntaxpayer] to show error, not on the IRS to prove trafficking.” (citation omitted) (internal\n\nquotation marks omitted)). But those cases did not consider whether that placement of the\n\nburden would violate the taxpayers’ Fifth Amendment rights, see Alpenglow, 894 F.3d at\n\n1197 (“Alpenglow has not raised a Fifth Amendment challenge on appeal . . . .”), an issue\n\nwe now consider in the first instance.\n\n In support of their argument that imposition of the burden violated their privilege\n\nagainst self-incrimination, the Taxpayers cite a series of Supreme Court cases\n\n\n 10\n\frecognizing the Fifth Amendment “right not to be criminally liable for one’s previous\n\nfailure to obey a statute which required an incriminatory act.” Leary v. United States, 395\n\nU.S. 6, 28 (1969) (considering a petitioner’s claim that compliance with transfer tax\n\nprovisions would expose him to prosecution under state narcotics laws); see also Haynes\n\nv. United States, 390 U.S. 85, 95 (1968) (considering a petitioner’s claim that\n\n“satisfaction of his obligation to register would have compelled him to provide\n\ninformation incriminating to himself”); Grosso v. United States, 390 U.S. 62, 66–67\n\n(1968) (dealing with a statute where the petitioner “is obliged, on pain of criminal\n\nprosecution, to provide information which would readily incriminate him, and which he\n\nmay reasonably expect would be provided to prosecuting authorities”); Marchetti v.\n\nUnited States, 390 U.S. 39, 42 (1968) (concluding statutory registration requirements\n\n“may not be employed to punish criminally those persons who have defended a failure to\n\ncomply with their requirements with a proper assertion of the privilege against\n\nself-incrimination”). The petitioners in those cases, however, were prosecuted for failing\n\nto comply with a statute compelling them to provide self-incriminating information, and\n\nthe Court determined the Fifth Amendment privilege provided a complete defense to that\n\nfailure. See, e.g., Haynes, 390 U.S. at 95 (considering the petitioner’s contention that\n\n“satisfaction of his obligation to register would have compelled him to provide\n\ninformation incriminating himself”); Marchetti, 390 U.S. at 61 (“[T]hose who properly\n\nassert the constitutional privilege as to [the provisions requiring incriminatory conduct]\n\nmay not be criminally punished for failure to comply with their requirements.”). In other\n\n\n\n\n 11\n\fwords, the Fifth Amendment privilege barred prosecution for failing to provide\n\nself-incriminating information.\n\n The Taxpayers fail to explain how requiring them to bear the burden of proving\n\nthe IRS erred in applying § 280E to calculate their civil tax liability is a form of\n\ncompulsion equivalent to a statute that imposes criminal liability for failing to provide\n\ninformation subjecting the party to liability under another criminal statute.1 Here, the\n\nTaxpayers must choose between providing evidence that they are not engaged in the\n\ntrafficking of a controlled substance or forgoing the tax deductions available by the grace\n\nof Congress. In the cases cited by the Taxpayers, the petitioners were faced with a choice\n\nof whether to be prosecuted criminally because they did not provide the information, or\n\n\n\n\n 1\n The Taxpayers devote a large portion of their reply brief discussing the\napplication of these cases to “substantiation” and COGS. In this appeal, the Taxpayers\ndid not challenge the tax court’s determination that the Taxpayers did not substantiate\nhigher COGS than those allowed by the IRS. Therefore, they waived any argument\nrelating to substantiation of COGS. See Alder v. Wal-Mart Stores, Inc., 144 F.3d 664, 679\n(10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are\nwaived . . . .”). And neither substantiation nor COGS is relevant to the issue of whether\nthe Taxpayers’ Fifth Amendment privilege is violated by requiring them to prove the IRS\nerred in rejecting THC’s business deductions under § 280E. First, § 280E does not have a\nsubstantiation component. Second, the IRS did not use § 280E to deny any COGS in this\ncase. In fact, the IRS’s position is that § 280E does not apply to COGS because COGS is\nan “exclusion,” not a “deduction.” Comm’r’s Br. at 7 (citing Alterman v. Comm’r, T.C.\nMemo. 2018-83 at *30).\n In their first letter submitted under Federal Rule of Appellate Procedure 28(j), the\nTaxpayers also point this court to Speiser v. Randall, 357 U.S. 513 (1958). But Speiser\ninvolved a due process argument that the taxing framework restricted speech in violation\nof the First Amendment, and it never mentions the Fifth Amendment privilege against\nself-incrimination. Speiser, 357 U.S. at 523–25.\n\n\n 12\n\fto be prosecuted criminally because they did. The circumstances are easily\n\ndistinguishable.\n\n Nor can we adopt the Taxpayers’ position without running afoul of Supreme Court\n\nprecedent “squarely reject[ing] the notion . . . that a possible failure of proof on an issue\n\nwhere the defendant had the burden of proof is a form of ‘compulsion’ which requires\n\nthat the burden be shifted from the defendant’s shoulders to that of the government.”\n\nUnited States v. Rylander, 460 U.S. 752, 758 (1983). Such a concept “would convert the\n\n[Fifth Amendment] privilege from the shield against compulsory self-incrimination\n\nwhich it was intended to be into a sword whereby a claimant asserting the privilege\n\nwould be freed from adducing proof in support of a burden which would otherwise have\n\nbeen his.” Id. The Fifth Amendment privilege “has never been thought to be in itself a\n\nsubstitute for evidence that would assist in meeting a burden of production.” Id.\n\n To be sure, “by invoking the privilege and refusing to produce the materials that\n\nmight support their deductions the [Taxpayers] no doubt made their task [of proving the\n\nIRS erred in denying their deductions] that much harder.” Feinberg I, 808 F.3d at 815.\n\nBut “a party who asserts the privilege against self-incrimination must bear the\n\nconsequences of [the] lack of evidence.” United States v. Goodman, 527 F. App’x 697,\n\n700 (10th Cir. 2013) (quotation marks omitted). Rylander teaches that the Taxpayers’\n\npossible failure of proof on an issue on which they bear the burden is not “compulsion”\n\nfor purposes of the Fifth Amendment. Id.2 Therefore, we reject the Taxpayers’ contention\n\n\n 2\n Although the Commissioner argued Rylander in its response brief, the Taxpayers\ndid not address the case in its reply. Instead, after this court expressed interest in\n\n 13\n\fthat bearing the burden of proving the IRS erred in rejecting THC’s business deduction\n\nunder § 280E violated the Taxpayers’ Fifth Amendment privilege.\n\n Taxpayers’ Evidence in Support of Meeting Burden\n\n Because we conclude the Taxpayers bear the burden of proving the IRS erred in\n\napplying § 280E, we must determine whether the Taxpayers met that burden. The\n\n\n\nRylander at oral argument, the Taxpayers attempted to challenge the applicability of\nRylander through a second rule 28(j) letter. The Taxpayers argue “Rylander is not\ndispositive because taxation of illegal activity is ‘fundamentally different’ than taxation\nfor revenue raising or regulatory purposes, with a fully different set of rules.” Taxpayers’\nJan. 31, 2019 28(j) Letter (quoting Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S.\n767, 782 (1994)). The distinction Kurth Ranch drew between taxation of illegal activity\nand taxation for revenue raising purposes was based on a double jeopardy clause analysis\nand makes no mention of the privilege against self-incrimination. 511 U.S. at 778–83. In\ntheir rule 28(j) letter, the Taxpayers also make arguments for the first time in this appeal\nabout the government’s burden in forfeiture cases and the tax court’s ability to preempt\nnontax state law regarding marijuana.\n None of these are proper uses of a rule 28(j) letter. The Taxpayers’ attempt to\ninterject issues of double jeopardy, forfeiture, and preemption is a “tactical shift [that]\ncomes far too late in the day.” Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013).\n“[W]e generally refuse to consider any . . . new issue introduced for the first time in a\nreply brief, let alone in a Rule 28(j) letter.” Id. A rule 28(j) letter’s purpose is “not to\ninterject a long available but previously unmentioned issue for decision.” Id. And to\nallow a party to use a rule 28(j) letter for such purpose\n risks leaving opponents with no opportunity (at least if they abide by the\n rules of appellate procedure) for a proper response; it risks an improvident\n opinion from this court by tasking us with the job of issuing an opinion\n without the full benefits of the adversarial process; and it invites an\n unsavory degree of tactical sandbagging by litigants in future cases: why\n bother pursuing a potentially winning issue at the outset when you can wait\n to introduce it at the last second and leave your opponent without a chance\n to respond?\nId. Therefore, we will not consider the Taxpayers’ arguments regarding double jeopardy,\nforfeiture, or preemption. And, for the reasons discussed above, we conclude Rylander is\ndispositive of the only question we are faced with in this appeal—whether placing the\nburden of proof on the Taxpayers violates the Fifth Amendment privilege.\n\n\n 14\n\fTaxpayers do not point to any evidence they introduced to meet this burden. Instead, they\n\ncontend there is a complete absence of proof that the Taxpayers unlawfully trafficked a\n\ncontrolled substance for purposes of § 280E. In support, the Taxpayers quote a portion of\n\nthe tax court’s opinion that noted “there is not enough evidence in the record to make a\n\nfinding of fact that THC sold medical marijuana,” App. at 3597, and claim it “is fatal to\n\nthe IRS’s assertion that Section 280E applies,” Taxpayers’ Br. at 14. We reject this\n\nargument for two reasons.\n\n First, the Taxpayers take the tax court’s comment out of context. The tax court\n\nwas considering whether the Taxpayers could substantiate higher COGS than allowed by\n\nthe IRS by relying on a rule that allows it to “estimate the amount of a deductible expense\n\nif a taxpayer establishes that an expense is deductible but is unable to substantiate the\n\nprecise amount.” App. at 3596 (citing Cohan v. Comm’r, 39 F.2d 540 (2d Cir. 1930)).\n\nThe Taxpayers wanted the tax court to make this estimate of COGS “based on industry\n\nstandards for the medical marijuana industry.” Id. at 3595. Recognizing that “THC held\n\nlicenses for selling medical marijuana in Colorado” during the relevant tax years, the tax\n\ncourt decided to “proceed as if THC was in the business of selling medical marijuana,”\n\neven though “there is not enough evidence in the record to make a finding of fact that\n\nTHC sold medical marijuana.” Id. at 3596–97. In other words, the tax court refused to\n\nallow the Taxpayers to rely on industry standards for the marijuana industry while\n\nsimultaneously refusing to meet their burden of establishing that they had indeed incurred\n\nCOGS in that industry. The tax court did not find the Taxpayers were not unlawfully\n\n\n\n\n 15\n\ftrafficking a controlled substance; it simply chided the Taxpayers for failing to meet their\n\nevidentiary burden.\n\n Second, as with COGS, “the burden falls on [the taxpayer] to show error [as to the\n\napplication of § 280E], not on the IRS to prove trafficking.” Alpenglow, 894 F.3d at\n\n1198. Therefore, the question is not whether the Commissioner introduced sufficient\n\nevidence to support the IRS’s finding of unlawful trafficking, but whether the Taxpayer\n\nintroduced evidence to prove THC was not unlawfully trafficking a controlled substance.\n\nThus, an absence of proof on the issue weighs against the taxpayers, not in their favor.\n\n The Taxpayers have not pointed to any evidence showing the IRS erred in\n\ndetermining they were engaged in unlawfully trafficking a controlled substance.\n\nTherefore, the Taxpayers failed to meet their burden of proving the IRS’s determination\n\nthat the deductions should be disallowed under § 280E was erroneous, and we affirm the\n\ntax court on this alternative ground.\n\n III. CONCLUSION\n\n The tax court erred in determining the Taxpayers were not entitled to the business\n\nexpense deductions because they failed to substantiate the expenses at trial. But we affirm\n\non the alternative ground that the Taxpayers failed to meet their burden of proving the\n\nIRS erroneously concluded THC was unlawfully trafficking in a controlled substance. As\n\n\n\n\n 16\n\fa result, § 280E precluded the deduction of the Taxpayers’ business expenses, and the tax\n\ncourt properly rejected their challenge to the deficiency.3\n\n\n\n\n 3\n The Taxpayers are understandably frustrated with the loss of their business\nexpense deductions under § 280E. Despite operating in accordance with state law\ncontrolling the distribution of medical marijuana, the Taxpayers are subject to greater\nfederal tax liability than other legitimate state businesses. But state legalization of\nmarijuana cannot overcome federal law. See Hancock v. Train, 426 U.S. 167, 178 (1976)\n(“It is a seminal principle of our law ‘that the [United States C]onstitution and the laws\nmade in pursuance thereof are supreme; that they control the constitution and laws of the\nrespective States, and cannot be controlled by them.’” (quoting McCulloch v. Maryland,\n4 Wheat. 316, 426 (1819))). Thus, the Taxpayers’ remedy must come from Congressional\nchange to § 280E or 21 U.S.C. § 812(c)(Schedule I) rather than from the courts.\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371266/", "author_raw": "McHUGH"}]}	LUCERO	MCHUGH	MORITZ	1	{"McHUGH": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4594013/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,600	Abdullah M. AL-RAYES, Et Al., Plaintiffs-Appellants, v. Erika M. WILLINGHAM, Individually and as Trustee of the Erika M. Willingham Trust, Defendant-Appellee.	Abdullah M. Al-Rayes v. Erika Willingham	2019-02-05	18-11059; 18-11539	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Pryor, Branch, Grant", "parties": "", "opinions": [{"author": "GRANT, Circuit Judge:", "type": "010combined", "text": "Case: 18-11059 Date Filed: 02/05/2019 Page: 1 of 15\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n Nos. 18-11059, 18-11539\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 3:15-cv-107-J-34JBT\n\nABDULLAH M. AL-RAYES, et al.,\n\n Plaintiffs-Appellants,\n\n versus\n\nERIKA M. WILLINGHAM,\nindividually and as Trustee of the\nERIKA M. WILLINGHAM TRUST,\n\n Defendant-Appellee.\n ________________________\n\n Appeals from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (February 5, 2019)\n\nBefore JILL PRYOR, BRANCH, and GRANT, Circuit Judges.\nGRANT, Circuit Judge:\n The creditors in this case claim that a husband and wife worked together to\n\ncommit multiple acts of mail and wire fraud over several years for the purpose of\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 2 of 15\n\n\n\nhiding the husband’s assets—acts which, in the creditors’ telling, violated RICO.\nThe creditors sued the wife. While the district court agreed that the couple may\n\nhave committed the alleged acts of fraud, it nonetheless granted the wife’s motion\nfor summary judgment. According to the court, because the couple’s marriage\npredated the alleged RICO acts, and the couple had created no sort of structure\nexternal to their marital relationship, no reasonable juror could conclude that they\n“formed an organization with some sort of framework, formal or informal, for the\npurpose of engaging in racketeering activity.” In other words, to put it in RICO\n\nterms, the court found no evidence of an “association-in-fact” enterprise. We are\nconvinced otherwise; after a thorough review of the record, we conclude that a\ngenuine factual dispute exists about whether this couple formed an association-in-\nfact enterprise separate and apart from their marital relationship. We therefore\nreverse the district court’s order granting summary judgment and remand for\nfurther proceedings. We also vacate the district court’s order awarding the wife\ncosts.\n I.\n Abdullah Al-Rayes and various corporate entities under his control\n(collectively “Al-Rayes”) sued Ben Willingham and several of his businesses,\nasserting that Ben defrauded Al-Rayes over the course of many real-estate\ntransactions. Roughly a year after that 2006 lawsuit, Al-Rayes received a $25.7\nmillion consent judgment against Ben. But after more than a decade, he has been\nable to collect only $39,943.81. Al-Rayes now argues that Ben’s wife, Erika\nWillingham, has stymied his efforts to collect the judgment by working with Ben\n\n 2\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 3 of 15\n\n\n\nto execute an intricate asset-concealment scheme. Viewed in the light most\nfavorable to Al-Rayes as the nonmovant, the record reflects the following facts.\n\n According to Al-Rayes, Erika and Ben’s scheme to hide Ben’s assets\ninvolved secretly transferring funds to offshore bank accounts. Their efforts to\nconceal those accounts began shortly after Al-Rayes secured the consent judgment\nagainst Ben. Less than a year after that judgment was entered, Al-Rayes’s counsel\ndeposed Ben as part of an attempt to collect the judgment. Ben testified that he did\nnot have any accounts or assets in Switzerland, where Erika was from and where\n\nhe and Erika had previously lived. Ben also swore that Erika did have a single\nSwiss bank account in her name, but that she had sole control over it. According\nto Ben, Erika made wire transfers from her Swiss account to the couple’s joint\naccount in the United States, and then used that money to pay for living expenses.\nErika, on the other hand, testified that she had no Swiss bank accounts in her name,\nand that her husband controlled all of her financial matters.\n Additional facts emerged a few years later when Ben filed for bankruptcy\nand Al-Rayes renewed his attempt to collect the consent judgment. During the\nproceedings, Erika stood by her earlier testimony that she did not have any bank\naccounts in Switzerland. But the bankruptcy court concluded otherwise, finding\nthat approximately 68 wire transfers were made from a Swiss bank account held\nonly in Erika’s name to the couple’s joint account in the United States. Those\ntransfers, totaling $255,740, were all made within approximately three years of the\nconsent judgment.\n\n\n\n 3\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 4 of 15\n\n\n\n Bank records subsequently turned over to the bankruptcy court revealed that\nover an eleven-year span Erika and Ben (individually or together) made at least\n\n240 wire transfers of Ben’s salary and benefits to Erika’s known Swiss account and\nto other (previously undisclosed) Swiss accounts held in Erika’s name. When\nconfronted with these records, Ben admitted that—despite his prior testimony that\nhe had no control over his wife’s (purportedly) single Swiss bank account—he\nactually had signatory authority over four Swiss bank accounts held in Erika’s\nname. He also conceded that—contrary to his prior testimony that he had no assets\n\nin Switzerland—he had made numerous transfers of his salary, benefits, and tax\nrefunds to Erika’s Swiss accounts. Following these admissions, he acknowledged\nthat he and Erika had used Swiss funds to pay their living expenses.\n Still, the parties dispute the extent of Erika’s involvement in these transfers.\nFor his part, Al-Rayes cites Ben’s testimony that his wife was aware that he was\nmaking the transfers, consented to the transfers, and even initiated some of the\ntransfers herself. Erika, on the other hand, consistently testified that her husband\nhad sole control over her finances and that she did not know about the Swiss\naccounts or any transfers involving those accounts.\n Al-Rayes’s allegations do not end there; he argues that Erika and Ben\nmisrepresented not only the location of Ben’s assets, but also their extent. For\nexample, Al-Rayes points to Ben’s declaration to the bankruptcy court that he and\nErika had no significant assets and a combined monthly income of $4,062. Only a\nweek after that declaration, however, the couple applied to a retirement community\nand represented that they owned $750,000 in real estate, $395,000 in investments,\n\n 4\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 5 of 15\n\n\n\nand $40,000 in cash. And subsequent events showed that the couple did have\navailable assets; a few months later, they paid the retirement community a\n\n$254,962.50 entrance fee.\n The couple also failed to notify the bankruptcy court of two important real-\nestate transactions made while the bankruptcy action was pending. First, they sold\ntheir house and received $334,295.53 in net proceeds, but failed to notify either the\nbankruptcy court or Al-Rayes. Moreover, both Erika and Ben paid for the house\nand signed the mortgage, but the title was in Erika’s name only, shielding Ben’s\n\nfunds from creditors who were seeking his assets. And a few months later, the\ncouple purchased a condo for $120,000 and again failed to notify the bankruptcy\ncourt or Al-Rayes. Like the house, the condo was purchased using funds from a\njoint account, but title was placed in Erika’s name alone—again, Al-Rayes\ncontends, in an attempt to hide Ben’s assets.\n These were not the only transactions that went unreported. The couple also\nfailed to notify the bankruptcy court or Al-Rayes when they received a partial\nrefund of their retirement-home entrance fee after moving out early. And they\nfailed to notify the bankruptcy court or Al-Rayes when Erika created a trust,\nnamed herself as trustee, and executed a quitclaim deed transferring the condo title\nto herself as trustee, while reserving a life estate in the condo for herself—and for\nher husband.\n Their alleged scheme did not end there. A few months before the\nbankruptcy action closed, Erika and Ben formed a corporation—Osborn of\nJacksonville, Inc.—purportedly to market a book that Ben had written. In the four\n\n 5\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 6 of 15\n\n\n\nmonths between Osborn’s creation and the close of the bankruptcy action, Ben\nmade several transfers totaling $176,630 from the couple’s joint bank account to\n\nthe corporation’s bank account. He did not notify the bankruptcy court or Al-\nRayes of those transfers, and later admitted to using funds from the corporation’s\naccount to pay the couple’s personal expenses.\n In light of these acts, Al-Rayes sued Erika1 in the United States District\nCourt for the Middle District of Florida, alleging that she violated RICO, 18 U.S.C.\n§ 1962(c); conspired to violate RICO, 18 U.S.C. § 1962(d); and violated several\nFlorida laws. To support the RICO claims, Al-Rayes alleged that Erika and Ben\nformed an association-in-fact enterprise by working together to conceal Ben’s\nassets. After thorough discovery, the district court granted Erika’s summary\n\njudgment motion, holding that both RICO claims failed because no reasonable\njuror could find that Erika and Ben together constituted an association-in-fact\nenterprise. Specifically, the court determined that the facts here could not satisfy\nthe Supreme Court’s requirement that individuals in an association-in-fact\nenterprise were “associated together for a common purpose of engaging in a course\nof conduct.” Boyle v. United States, 556 U.S. 938, 944 (2009) (quoting United\n\nStates v. Turkette, 452 U.S. 576, 583 (1981)).\n In evaluating whether Erika and Ben could be considered an association-in-\nfact enterprise under RICO, the court acknowledged that the two “are associated in\n\n1\n For whatever reason, Ben Willingham is not a party to this action. The Complaint states that\nAl-Rayes sued Erika Willingham because she “orchestrated and carried out a convoluted\nfraudulent scheme to conceal [Ben’s] assets in order to hinder, delay, and impede” Al-Rayes’s\nability to collect the consent judgment. Also, Erika is the sole trustee of the Erika Willingham\nTrust.\n 6\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 7 of 15\n\n\n\nmarriage, and in the course of that marriage engaged in acts which may constitute\nmail or wire fraud.” Still, the court determined, the couple could not constitute an\n\nassociation-in-fact enterprise because “there is no evidence to suggest that they\nassociated together for that purpose.” The court indicated that Al-Rayes\nnevertheless could have shown an association-in-fact enterprise if he had alleged\nthat the enterprise was—or at least included—a business or other separate entity\nrun by Erika and Ben. But because the alleged enterprise lacked a non-marital\ncomponent, the court concluded that Al-Rayes had failed to present sufficient\n\nevidence of a RICO enterprise.\n Having disposed of both federal RICO claims, the court declined to exercise\nsupplemental jurisdiction over the remaining state-law claims. The court later\ndeemed Erika a prevailing party and awarded her $2,661.72 in costs under Federal\nRule of Civil Procedure 54(d)(1). Al-Rayes now appeals, challenging both the\norder granting summary judgment and the order awarding costs.\n II.\n On appeal from a grant of summary judgment, this Court reviews legal\nquestions de novo. Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918–19\n(11th Cir. 1993). We also conduct a de novo review of the evidence, viewing all\nevidence in the light most favorable to the nonmoving party and resolving all\nreasonable inferences in favor of the nonmoving party. Id. As for the award of\ncosts, whether “the facts as found suffice to render the plaintiff a ‘prevailing party’\nis a legal question reviewed de novo.” Lipscher v. LRP Publ’ns, Inc., 266 F.3d\n1305, 1321 (11th Cir. 2001) (citation omitted).\n\n 7\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 8 of 15\n\n\n\n III.\n RICO is widely regarded as a broad statute; indeed, the RICO text itself\n\n“provides that its terms are to be ‘liberally construed to effectuate its remedial\npurposes.’” Boyle, 556 U.S. at 944 (quoting Pub. L. No. § 904(a), 84 Stat. 922,\n947 (1970)); see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497 (1985)\n(“RICO is to be read broadly.”); Russello v. United States, 464 U.S. 16, 21 (1983)\n(recognizing “the pattern of the RICO statute in utilizing terms and concepts of\nbreadth”); Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1227 (11th Cir. 2014)\n\n(observing that “civil RICO targets a broad category of criminally fraudulent\nacts”). This breadth of language (and, we will see, of construction) is evident in\nthe provision of RICO at issue in this case: RICO makes it “unlawful for any\nperson employed by or associated with any enterprise engaged in, or the activities\nof which affect, interstate or foreign commerce, to conduct or participate, directly\nor indirectly, in the conduct of such enterprise’s affairs through a pattern of\nracketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c)\n(emphasis added).2\n “Enterprise,” in turn, is defined to encompass “any individual, partnership,\ncorporation, association, or other legal entity, and any union or group of\nindividuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4)\n(emphasis added). As the Supreme Court has emphasized, the “term ‘any’ ensures\n\nthat the definition has a wide reach, and the very concept of an association in fact\n\n\n2\n “A violation of § 1962(c)” requires “(1) conduct (2) of an enterprise (3) through a pattern (4) of\nracketeering activity.” Sedima, 473 U.S. at 496.\n 8\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 9 of 15\n\n\n\nis expansive.” Boyle, 556 U.S. at 944 (citation omitted). Along those lines, the\nSupreme Court has “succinctly” defined an association-in-fact enterprise as any\n\n“group of persons associated together for a common purpose of engaging in a\ncourse of conduct.” Id. at 946 (quoting Turkette, 452 U.S. at 583). In keeping\nwith that general definition, an association-in-fact enterprise may be “formal or\ninformal,” and requires only “three ‘structural features’: (1) a ‘purpose,’\n(2) ‘relationships among those associated with the enterprise,’ and (3) ‘longevity\nsufficient to permit these associates to pursue the enterprise’s purpose.’” Almanza\n\nv. United Airlines, Inc., 851 F.3d 1060, 1067 (11th Cir. 2017) (first quoting\nTurkette, 452 U.S. at 583; and then quoting Boyle, 556 U.S. at 946).\n Here, the district court granted summary judgment because it determined\nthat the evidence was insufficient to satisfy Boyle’s “purpose” requirement. The\ndistrict court’s order acknowledges the rather obvious point that as a married\ncouple Erika and Ben have a relationship, and goes on to conclude that “in the\ncourse of that marriage [the couple] engaged in acts which may constitute mail or\nwire fraud.” Still, the district court declined to recognize Erika and Ben as an\nassociation-in-fact enterprise because the record lacked evidence that they\noriginally married for the purpose of engaging in mail or wire fraud. The district\ncourt was careful to note that it was not ruling out the possibility that a married\ncouple could form an enterprise. But the court also indicated that, so long as a\ncouple does not “get married for the purpose of engaging in racketeering activity,”\nsome additional structure or vehicle must be alleged for the pair to qualify as an\nassociation-in-fact enterprise; this requirement seemed to reflect a view that the\n\n 9\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 10 of 15\n\n\n\nformation of a new entity would somehow demonstrate a new shared purpose\nbetween the couple that eclipsed their prior marital intentions.\n\n We disagree. As an initial matter, to satisfy the purpose requirement, neither\nthe text of RICO nor any relevant precedent requires an association-in-fact\nenterprise to consist of strangers who originally met for the purpose of engaging in\nillegal activity. “That an ‘enterprise’ must have a purpose is apparent from the\nmeaning of the term in ordinary usage, i.e., a ‘venture,’ ‘undertaking,’ or\n‘project.’” Boyle, 556 U.S. at 946 (quoting Webster’s Third New International\n\nDictionary 757 (1976)). Thus, the “concept of ‘associat[ion]’ requires both\ninterpersonal relationships and a common interest.” Id. (alteration in original).\nNothing in that description prevents individuals with preexisting relationships—\nsay, family members or business partners—from later joining together for the\ncommon purpose of engaging in illegal activity. So, unsurprisingly, federal courts\nhave routinely recognized association-in-fact enterprises made up of individuals\nwho had relationships that predated their schemes. See, e.g., Crowe v. Henry, 43\nF.3d 198, 201, 205 (5th Cir. 1995) (plaintiff adequately pleaded an association-in-\nfact enterprise consisting of two people who originally met as “friends and\nbusiness associates”); United States v. Torres Lopez, 851 F.2d 520, 528 (1st Cir.\n1988) (evidence was sufficient for a rational trier of fact to find that a RICO\nenterprise consisted of a group of police officers who met as members of the\nPuerto Rico Police Department and then joined together to engage in criminal\nconduct for pay); Nesbitt v. Regas, No. 13 C 8245, 2015 WL 1331291, at 7 (N.D.\nIll. Mar. 20, 2015) (plaintiff adequately pleaded that people with longtime “family\n\n 10\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 11 of 15\n\n\n\nand business relationships” formed an association-in-fact enterprise). We can see,\nthen, that the relevant “purpose” in an association-in-fact enterprise is the\n\nmembers’ shared purpose of engaging in illegal activity—not the purpose for\nwhich they initially became acquainted.\n Moreover, neither the text of RICO nor any relevant precedent imposes a\nheightened “structure” requirement for married couples. But the district court\nappears to have done just that. While it may not have described it as mandatory,\nthe district court’s explanation of how a married couple could form an association-\n\nin-fact enterprise under RICO is telling. The court emphasized that an enterprise\nmust be a “vehicle” and that “some discernable structure is still required.” The\ncourt then went on to deem it “[s]ignificant[]” that the RICO enterprise here “does\nnot encompass the actions of Ben Willingham’s business entities.” 3 The court also\nconcluded that the couple’s actions to hide Ben’s assets were those of a “husband\nand wife, conducting the personal affairs of Erika and Ben Willingham, not the\naffairs of a separate ‘enterprise.’”\n In so reasoning, the court imposed a requirement that the Supreme Court has\nalready expressly rejected in Boyle. When presented with the assertion that “the\n\n\n3\n The corporation formed by the couple deserves a brief discussion. The district court stated that\nwhile “Ben Willingham did incorporate Osborn, allegedly as part of his concealment efforts,\nCreditors do not allege that Osborn is the RICO enterprise, or even a part of the enterprise, at\nissue here.” A more generous reading of the Complaint could indicate that Al-Rayes did allege\nthat Osborn was part of the enterprise; that document contends that Erika and Ben “formed a\nscheme or artifice to defraud” Al-Rayes that included, among other things, “creating” Osborn\n“and using Osborn’s bank accounts to further launder funds that were subsequently used to pay\nfor personal expenses.” But whether Osborn is viewed as a part of the alleged RICO enterprise\nis not dispositive because an association-in-fact enterprise need not include a corporation or\nother formal structure in any event.\n 11\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 12 of 15\n\n\n\ndefinition of a RICO enterprise is limited to ‘businesslike entities,’” the Supreme\nCourt stated that it saw “no basis to impose such an extratextual requirement.”\n\nBoyle, 556 U.S. at 945. Not only has the Supreme Court rejected the assertion that\nan association-in-fact enterprise must be “businesslike,” it has also instructed lower\ncourts not to require that association-in-fact enterprises have the formal\ncharacteristics often associated with businesses or other legal entities. For\nexample, the Supreme Court has stated that the group comprising the association-\nin-fact enterprise “need not have a hierarchical structure or a ‘chain of command,’”\n\nand the “group need not have a name, regular meetings, dues, established rules and\nregulations, disciplinary procedures, or induction or initiation ceremonies.” Id. at\n948. In light of Boyle’s express rejection of the assertion that association-in-fact\nenterprises must be “businesslike,” we cannot agree with the district court’s\nconclusion that, as a matter of law, an association-in-fact enterprise cannot exist\nhere simply because the couple’s alleged bad acts were confined to the\nmanagement of their personal funds.4\n We note that the district court cited several cases to back up its suggestion\nthat, absent a business or other distinct operation, Erika and Ben could not\n\nconstitute an association-in-fact enterprise. But none of those cases actually\nsupports that conclusion. In fact, one case shows that an association-in-fact\nenterprise can consist solely of two people who are married to each other. See,\n\n\n4\n The Supreme Court has repeatedly rejected the notion that RICO only targets organized crime\nin the traditional sense. See, e.g., Sedima, 473 U.S. at 499 (RICO is not limited to “being used\nagainst mobsters and organized criminals.”); Turkette, 452 U.S. at 580 (RICO encompasses\n“both legitimate and illegitimate enterprises.”).\n 12\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 13 of 15\n\n\n\ne.g., Absolute Activist Value Master Fund Ltd. v. Devine, No. 2:15-cv-328-FtM-\n29DNF, 2015 WL 12838168, at 19 (M.D. Fla. July 1, 2015) (plaintiff was\n\nsubstantially likely to establish an association-in-fact enterprise consisting of a\nhusband and wife working together for the common purpose of concealing the\nproceeds of a fraudulent scheme). And in another, the court—having already\nfound the enterprise element satisfied by the presence of a “business entity”—\nsummarily declined to recognize the marriage itself as a RICO enterprise simply\nbecause “the plaintiff cite[d] no case law” on point. Edvisors Network, Inc. v.\n\nHusser, No. 14-062-JJB-RLB, 2014 WL 3853457, at 3 (M.D. La. Aug. 5, 2014).\nMoreover, the cases concluding that the requirements for an association-in-fact\nenterprise were not met all turn on infirmities not present here. See Danny Lynn\nElec. & Plumbing, LLC v. Veolia ES Solid Waste Se., Inc., No. 2:09cv192-MHT,\n2011 WL 2893629, at 4 (M.D. Ala. July 19, 2011) (complaint did not allege that\nmembers of the alleged enterprise actually carried out the illegal acts); Paradise\nNw. Inc. v. Randhawa, No. 2:09-cv-02027-MCE-KJN, 2011 WL 1459206, at *2\n(E.D. Cal. April 15, 2011) (no shared purpose because complaint did not allege\nthat wife played a meaningful role in her husband’s fraudulent business). So what\n\nthese cases actually affirm is that a married couple can constitute an association-in-\nfact enterprise under RICO—or not—depending on the facts of the case.\n That brings us back around to the facts of this case. Under a purpose\n\nanalysis consistent with Boyle, the record contains sufficient evidence for a\nreasonable juror to find that—although Erika and Ben originally joined together for\nthe purpose of marriage—the couple came together shortly after the consent\n\n 13\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 14 of 15\n\n\n\njudgment was entered against Ben for a new purpose, to hinder Al-Rayes’s efforts\nto collect the consent judgment by committing mail and wire fraud. That evidence,\n\nviewed in the light most favorable to Al-Rayes, reflects that the couple deposited\nBen’s income into offshore bank accounts held in Erika’s name only, and then\ntransferred some of those offshore funds to their joint U.S. bank account to pay for\nliving expenses. All the while, both Erika and Ben denied the existence of the\noffshore accounts under oath and made numerous misrepresentations regarding the\nextent of their financial assets. The record also reflects that the couple purchased\n\nreal estate jointly, but put the titles to the properties in Erika’s name only;\neventually, the couple created a trust in Erika’s name only, to which they\ntransferred the condo title. Finally, the record contains evidence that the couple\nformed a corporation, set themselves up as its sole shareholders, and then used its\nbank account as both a haven for personal funds and a source for personal\nexpenditures. These actions may or may not constitute RICO violations. But they\ncertainly could lead a reasonable juror to conclude that Erika and Ben came\ntogether shortly after the consent judgment was entered and orchestrated an asset-\nconcealment scheme for the common purpose of hiding Ben’s assets from Al-\nRayes. A marriage certificate does not transform alleged mail and wire fraud into\nordinary household management.\n In sum, to survive summary judgment, Al-Rayes did not need to bolster\nErika and Ben’s marital relationship with evidence that the alleged association-in-\nfact enterprise included a business or other separate entity formed by the couple.\nNor did he need to provide evidence that Erika and Ben originally married for the\n\n 14\n\f Case: 18-11059 Date Filed: 02/05/2019 Page: 15 of 15\n\n\n\npurpose of engaging in mail or wire fraud. Under RICO, the same rules apply to\nmarried people as to everyone else. Because the district court applied a heightened\n\nstandard for association-in-fact enterprises consisting of married couples when it\ngranted summary judgment in Erika’s favor, we must reverse that order.\n This opinion addresses only the “enterprise” element of the RICO claims\nbecause the district court’s order addressed only that element. Accordingly,\nnothing in this decision prevents the district court from entering judgment as a\nmatter of law in Erika’s favor on some other basis, should that be appropriate. And\n\nbecause we reverse the order granting summary judgment in Erika’s favor, Erika\nno longer qualifies as a prevailing party under Federal Rule of Civil Procedure\n54(d)(1). We therefore also vacate the district court’s order awarding her costs.\n REVERSED, VACATED, AND REMANDED.\n\n\n\n\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364853/", "author_raw": "GRANT, Circuit Judge:"}]}	PRYOR	BRANCH	GRANT	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587600/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,867	Domineque Hakim Marcelle RAY, Plaintiff-Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.	Domineque Hakim Marcelle Ray v. Commissioner, Alabama Department of Corrections	2019-02-06	19-10405	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Marcus, Wilson, Martin", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 19-10405 Date Filed: 02/06/2019 Page: 1 of 28\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 19-10405\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 2:19-cv-00088-WKW-CSC\n\n\nDOMINEQUE HAKIM MARCELLE RAY,\n\n Plaintiff - Appellant,\n\nversus\n\nCOMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,\n\n Defendant - Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Alabama\n ________________________\n\nBefore MARCUS, WILSON and MARTIN, Circuit Judges.\n\nMARCUS, Circuit Judge:\n\n Petitioner Domineque Ray has moved this Court for an emergency stay of\n\nhis execution, scheduled to take place at 6:00 p.m. (CST) on February 7, 2019 at\n\nthe Holman Correctional Facility (“Holman”) in Atmore, Alabama, for the 1995\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 2 of 28\n\n\nrape, robbery, and murder of fifteen-year-old Tiffany Harville. He also appeals\n\nfrom the determination of the district court denying his emergency motion for a\n\nstay and dismissing two of his claims under the Religious Land Use and\n\nInstitutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and\n\nunder § 1983 and the Establishment Clause of the First Amendment.\n\n I.\n\n Precious little in the way of evidence has been adduced at this late hour.\n\nBased on our review of the amended complaint, the responses each party has made\n\nto a series of questions posed to them by the district court, and the short hearing\n\nheld by the trial court on January 31, we know this much: Domineque Ray has\n\nbeen a committed Muslim since at least 2006. He has been meeting with his\n\ncurrent Imam, Yusef Maisonet of Masjid As Salaam, who has provided religious\n\nministry to Muslim prisoners in Holman since 2015. Ray’s Imam has stated that\n\nRay was a devout Muslim when the Imam began his ministry at Holman and that\n\nRay continues to be committed to Islam to this day. Moreover, the Commissioner\n\nof the Alabama Department of Corrections (“ADOC”) does not dispute the\n\nsincerity of Ray’s religious beliefs.\n\n On January 23, 2019, Ray met with the Warden of Holman, Cynthia\n\nStewart, who, apparently for the first time, explained to Ray the practices and\n\npolicies that were followed by the ADOC during the administration of the death\n\n 2\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 3 of 28\n\n\npenalty. Among other things, the Warden explained that Chaplain Chris Summers\n\nwould be in the execution chamber during the administration of the lethal injection.\n\nThe state 1 has further explained that since 1997 Chaplain Summers has witnessed\n\nnearly every execution conducted in the state of Alabama as part of his official\n\nduties. During the execution, Chaplain Summers, a Christian, will kneel at the side\n\nof the prisoner and pray with him if the inmate requests prayer. If the inmate does\n\nnot want pastoral care from Chaplain Summers, he will remain in the execution\n\nchamber standing unobtrusively by the wall. The inmate’s designated witnesses,\n\nlimited to six, along with any spiritual advisor other than Chaplain Summers, may\n\nbe seated in a witness room, separated from the death chamber by a large window.\n\n During the January 23 meeting with the Warden, Ray made three requests\n\nfor the accommodation of his religious beliefs: first, that his Imam be present in\n\norder to provide spiritual guidance for him at the time of his death; second, that the\n\ninstitutional Christian Chaplain be excluded from the chamber; and, finally, that he\n\nnot be required to undergo an autopsy because it conflicted with his religious\n\nbeliefs. The Warden denied the first two requests and explained that she had no\n\ndecisional authority over the autopsy.\n\n\n\n\n1\n The Commissioner of the Alabama Department of Corrections is the defendant in\nthis suit, but since he is being sued in his official capacity, we will refer to him as\n“the state” or “Alabama.”\n 3\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 4 of 28\n\n\n On the same day, Ray also met with Chaplain Summers and again requested\n\nthe presence of an imam and that Chaplain Summers not be present in the\n\nexecution chamber during his execution. The Chaplain told Ray that his requests\n\ncould not be honored due to ADOC policy. When Ray asked both Warden Stewart\n\nand Chaplain Summers if he could see a copy of the prison’s policy that dictated\n\nthese arrangements, he was told that he could not.\n\n We also know that Ray has met with his Imam in a contact visit at Holman\n\nas recently as January 29, and had another such visit scheduled for January 30.\n\nMoreover, according to the state, his Imam may visit with him in the days leading\n\nup to and on the execution day itself. Further, his Imam may accompany him to a\n\nholding cell adjacent to the execution chamber and remain with him until the\n\ninmate makes the final walk to the chamber.\n\n Ray filed his civil rights complaint and emergency motion for stay of\n\nexecution in the United States District Court for the Middle District of Alabama on\n\nJanuary 28, 2019, and lodged an amended complaint on January 31. Ray’s\n\namended complaint makes four claims. First, Ray says that excluding his Imam\n\nfrom the execution chamber at the time of his execution in favor of a Christian\n\nchaplain violates his rights under the Religious Land Use and Institutionalized\n\nPersons Act. Second, he claims that requiring the presence of a Christian chaplain\n\nin the execution chamber at the time of his execution also violates his rights under\n\n 4\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 5 of 28\n\n\nRLUIPA. Third, Ray alleges that Alabama’s practice of requiring a Christian\n\nchaplain in the execution chamber, while forbidding clerics of other faiths, violates\n\nthe Establishment Clause of the First Amendment.2 Finally, Ray submits that\n\nrefusing to honor his late election for nitrogen hypoxia as the method of his\n\nexecution, where his lateness resulted from his religious beliefs, also violates\n\nRLUIPA. Setting aside the final claim, which he has not preserved for our present\n\npurposes, Ray’s amended complaint seeks two basic accommodations: that the\n\nstate not allow the presence of Holman’s Christian Chaplain and that his Imam be\n\nallowed in the execution chamber so that he may receive spiritual guidance and\n\ncomfort from a cleric of his own faith.\n\n The district court set a hearing for January 31 and issued an order to show\n\ncause to the state asking why the procedures Ray challenged were permissible.\n\nThe order also directed the Commissioner to answer a series of questions about\n\nRay, the Chaplain, and ADOC procedures, and to file under seal the prison’s\n\nrelevant written policies or procedures. On January 31, 2019, Alabama responded\n\nand moved to dismiss Ray’s complaint.\n\n\n\n2\n Although Ray did not mention Title 42 U.S.C. § 1983 as the method by which he\nwas asserting his Establishment Clause claim, the Supreme Court has made it clear\nthat he need not expressly invoke that provision. See Johnson v. City of Shelby,\n135 S. Ct. 346, 347 (2014) (holding that “no heightened pleading rule requires\nplaintiffs seeking damages for violations of constitutional rights to invoke § 1983\nexpressly in order to state a claim”).\n 5\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 6 of 28\n\n\n The state’s response included further details about ADOC policies and\n\nprocedures as well as a thoroughly redacted version of the prison’s relevant\n\nprocedures, filed under seal. The state further explained that Chaplain Summers\n\nhas been an ADOC employee since 1990 and is “familiar with the technicalities of\n\nthe execution protocol.” If an inmate wishes, he “will kneel at [the inmate’s] side\n\nand pray with him” during the execution. The state explained that it “ha[d] not\n\npreviously accommodated any prisoner’s request that the institutional Chaplain not\n\nbe present in the execution chamber.” Nor had it “executed a prisoner by lethal\n\ninjection without a chaplain attending the execution.”\n\n The state added that Ray would be allowed visitation with his spiritual\n\nadvisor on the day of execution. Citing the confidential procedures, the state\n\nexplained that “shortly before his execution, a condemned inmate is permitted to\n\nmeet with the spiritual advisor of his choosing.” The spiritual advisor may then\n\nobserve the execution from the viewing room, along with the inmate’s relatives,\n\nfriends, and members of the media.\n\n Although Alabama expressly disclaimed any constitutional defect in\n\nrequiring the presence of the prison’s Christian Chaplain, the state agreed to\n\naccommodate Ray’s request and exempt the institution’s Chaplain from the\n\nexecution chamber. Alabama reiterated, though, that it would not permit Ray’s\n\nImam to take the Chaplain’s place. The state explained that it “will not permit a\n\n 6\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 7 of 28\n\n\nnon-ADOC employee, someone unfamiliar with the execution process and with the\n\npractices and safety concerns of the prison, to be in the chamber in the chaplain’s\n\nplace.” Having made this concession, Alabama responded to the show cause\n\norder’s inquiries about the lawfulness of its practices by alleging that the issues had\n\nbecome moot.\n\n The district court took oral argument on January 31. Beyond the answers\n\nthat were given in the parties’ written responses, no additional facts were adduced\n\nat the hearing. Ray requested, however, a “quick evidentiary hearing,” and\n\nspecifically suggested that, among other things, the prison Chaplain could “testify\n\nby telephone” within the next few days and be asked “what training he received\n\nand how difficult it would be for him to walk Mr. Ray’s Imam through that\n\ntraining.” The state, although it did not request a hearing, said that, if appropriate,\n\nit could offer evidence supporting its position.\n\n The following day, the district court issued an order denying the motion to\n\nstay execution and dismissing Counts 2 and 3 of Ray’s complaint. At the heart of\n\nits holding, the court found Ray “guilty of inexcusable delay,” which, it said,\n\nyielded a “strong equitable presumption against granting a stay.” The trial court\n\nexplained that “Ray has had ample opportunity in the past twelve years to seek a\n\nreligious exemption, instead of waiting until the eleventh hour to do so.”\n\nMoreover, the district court found that Ray was not likely to succeed on the merits.\n\n 7\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 8 of 28\n\n\nAddressing the RLUIPA claim, and only the RLUIPA claim, on the merits the\n\ncourt determined that Ray had not identified a substantial burden on his religious\n\nexercise, that Ray had not shown it was substantially likely that Alabama lacked a\n\ncompelling interest in keeping all clerics other than the prison Chaplain out of the\n\nexecution chamber, and, finally, that Ray had failed to adequately establish that a\n\nless restrictive means of furthering that interest was available. The state’s\n\nagreement to remove the Chaplain, the court offered, had mooted Ray’s claim\n\nunder the Establishment Clause.\n\n After review of this exceedingly limited record, we reject the district court’s\n\nanalysis, and its refusal to grant an emergency stay in the face of what we see as a\n\npowerful Establishment Clause claim. Because Ray has demonstrated a substantial\n\nlikelihood of success on the Establishment Clause and because the other equitable\n\nfactors tip in his favor, Ray’s emergency motion for stay is granted. We direct the\n\nClerk of Court to expedite the appeal of Ray’s case so that we may promptly\n\naddress and resolve these claims.\n\n II.\n\n “It is by now hornbook law that a court may grant a stay of execution only if\n\nthe moving party establishes that: (1) he has a substantial likelihood of success on\n\nthe merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the\n\nstay would not substantially harm the other litigant; and (4) if issued, the injunction\n\n 8\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 9 of 28\n\n\nwould not be adverse to the public interest.” Arthur v. Comm’r, Ala. Dep’t of\n\nCorr., 840 F.3d 1268, 1321 (11th Cir. 2016) (quoting Brooks v. Warden, 810 F.3d\n\n812, 818 (11th Cir. 2016) (emphases in original)). “[W]e review the denial of a\n\nstay of execution only for abuse of discretion.” Brooks, 810 F.3d at 818.\n\n A.\n\n We begin, as we must, with “the first and most important question”\n\nconcerning a stay of execution: whether Ray is substantially likely to succeed on\n\nthe merits of his claims. Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288,\n\n1292 (11th Cir. 2016).\n\n The First Amendment to the United States Constitution commands that\n\n“Congress shall make no law respecting an establishment of religion, or\n\nprohibiting the free exercise thereof.” U.S. Const., amend. I. The Supreme Court\n\nhas long since made this command binding on the states as well. See Cantwell v.\n\nConnecticut, 310 U.S. 296, 303 (1940); Murdock v. Commonwealth of\n\nPennsylvania, 319 U.S. 105, 108 (1943); Everson v. Bd. of Educ. of Ewing Twp.,\n\n330 U.S. 1, 8 (1947).\n\n The claim presented by Domineque Ray touches at the heart of the\n\nEstablishment Clause. Indeed, we can think of no principle more elemental to the\n\nEstablishment Clause than that the states and the federal government shall not\n\nfavor one religious denomination over another. In the words of the Supreme\n\n 9\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 10 of 28\n\n\nCourt: “The clearest command of the Establishment Clause is that one religious\n\ndenomination cannot be officially preferred over another.” Larson v. Valente, 456\n\nU.S. 228, 244 (1982). Since Everson v. Board of Education, the Supreme Court\n\n“has adhered to the principle, clearly manifested in the history and logic of the\n\nEstablishment Clause, that no State can ‘pass laws which aid one religion’ or that\n\n‘prefer one religion over another.’” Larson, 456 U.S. at 246 (quoting Everson, 330\n\nU.S. at 15).\n\n “[T]his principle of denominational neutrality has been restated on many\n\noccasions. In Zorach v. Clauson, 343 U.S. 306 (1952), [the Supreme Court] said\n\nthat ‘[t]he government must be neutral when it comes to competition between\n\nsects.’ Id. at 314. In Epperson v. Arkansas, 393 U.S. 97 (1968), [the Supreme\n\nCourt] stated unambiguously: ‘The First Amendment mandates governmental\n\nneutrality between religion and religion. . . . The State may not adopt programs or\n\npractices . . . which ‘aid or oppose’ any religion. . . . This prohibition is absolute.’\n\nId. at 104, 106, citing Abington School District v. Schempp, 374 U.S. 203, 225\n\n(1963). And Justice Goldberg cogently articulated the relationship between the\n\nEstablishment Clause and the Free Exercise Clause when he said that ‘[t]he fullest\n\nrealization of true religious liberty requires that government . . . effect no\n\nfavoritism among sects . . . and that it work deterrence of no religious belief.’\n\nAbington School District, 374 U.S. at 305.” Larson, 456 U.S. at 246; see also Bd.\n\n 10\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 11 of 28\n\n\nof Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 690 (1994);\n\nRosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 839 (1995) (“[A]\n\nsignificant factor in upholding governmental programs in the face of Establishment\n\nClause attack is their neutrality towards religion.”); Van Orden v. Perry, 545 U.S.\n\n677, 684 (2005) (identifying neutrality as one of the two “faces” of the\n\nEstablishment Clause).\n\n The neutrality principle embodied in the Establishment Clause is a critical\n\nbulwark of religious freedom. The Establishment Clause and the Free Exercise\n\nClause work together to safeguard the spiritual freedom of our people. Indeed, free\n\nexercise depends in no small measure on non-interference and non-preferential\n\ntreatment by the state, and it “can be guaranteed only when legislators . . . are\n\nrequired to accord to their own religions the very same treatment given to small,\n\nnew, or unpopular denominations.” Larson, 456 U.S. at 245. Quite simply, the\n\npower, prestige, and support of the state may not be placed behind a particular\n\nreligious belief. See Engel v. Vitale, 370 U.S. 421, 431 (1962). When the\n\ngovernment “allie[s] itself with one particular form of religion, the inevitable result\n\n[is] that it . . . incur[s] the hatred, disrespect and even contempt of those who [hold]\n\ncontrary beliefs.” Id.\n\n It is also by now a principle clearly embedded in our law that “when it is\n\nclaimed that a denominational preference exists, the initial inquiry is whether the\n\n 11\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 12 of 28\n\n\nlaw facially differentiates among religions.” Hernandez v. Comm’r, 490 U.S. 680,\n\n695 (1989). “[W]hen we are presented with a state law granting a denominational\n\npreference,” rather than employ the three-pronged inquiry derived from Lemon v.\n\nKurtzman, 403 U.S. 602 (1971), “we treat the law as suspect and . . . apply strict\n\nscrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246. Thus, the\n\nrule, policy, or practice “must be invalidated unless it is justified by a compelling\n\ngovernmental interest . . . and unless it is closely fitted to further that interest.” Id.\n\nat 247.\n\n We are exceedingly loath to substitute our judgment on prison procedures\n\nfor the determination of those officials charged with the formidable task of running\n\na prison, let alone administering the death penalty in a controlled and secured\n\nmanner. Nevertheless, in the face of this limited record, it looks substantially\n\nlikely to us that Alabama has run afoul of the Establishment Clause of the First\n\nAmendment.\n\n What we can say with some confidence based on what little we have seen is\n\nthat Holman prison will place its Christian Chaplain in the execution chamber; that\n\nit has done so nearly uniformly for many years; that the Christian Chaplain will\n\noffer to minister to the spiritual needs of the inmate who is about to face his Maker,\n\nand that the Chaplain may pray with and touch the inmate’s hand as a lethal\n\ncocktail of drugs is administered; and that only a Christian chaplain may go into\n\n 12\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 13 of 28\n\n\nthe death chamber and minister to the spiritual needs of the inmate, whether the\n\ninmate is a Christian, a Muslim, a Jew, or belongs to some other sect or\n\ndenomination. What is central to Establishment Clause jurisprudence is the\n\nfundamental principle that at a minimum neither the states nor the federal\n\ngovernment may pass laws or adopt policies that aid one religion or prefer one\n\nreligion over another. And that, it appears to us, is what the Alabama Department\n\nof Corrections has done here.\n\n Alabama’s policy facially furthers a denominational preference. While the\n\nAlabama statute provides that only certain persons “may be present at an\n\nexecution,” including, among others, “[t]he spiritual advisor of the condemned,”\n\n“[t]he chaplain of Holman Prison,” and six relatives or friends of the condemned,\n\nAla. Code § 15–18–83(a) (emphasis added), the statute neither requires the\n\npresence of any particular individual nor specifies whether the listed persons may\n\nbe present in the execution chamber itself or only in the adjoining witness viewing\n\nroom, behind two-way glass. But Alabama has told us that the inmate’s spiritual\n\nadvisor may observe the execution only from the witness room. Only Holman’s\n\nprison Chaplain shall be in the execution chamber with the inmate. And while the\n\nstate has been “willing to waive” Chaplain Summers’s presence in this instance, it\n\nhas not agreed to accommodate Ray by bringing his Imam into the chamber.\n\n\n\n\n 13\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 14 of 28\n\n\n The Establishment Clause “requires that we neither abdicate our\n\nresponsibility to maintain a division between church and state nor evince a hostility\n\nto religion by disabling the government from in some ways recognizing our\n\nreligious heritage.” Van Orden, 545 U.S. at 683–84. As Justice Douglas observed\n\nlong ago, “[w]e are a religious people whose institutions presuppose a Supreme\n\nBeing. We guarantee the freedom to worship as one chooses. We make room for\n\nas wide a variety of beliefs and creeds as the spiritual needs of man deem\n\nnecessary.” Zorach, 343 U.S. at 313. Thus it should come as no surprise that we\n\nmay define ourselves in times of greatest need in reference to faith. Providing a\n\ncleric to an inmate at a spiritually critical moment by itself likely does not run\n\nafoul of the Establishment Clause. See, e.g., Cutter v. Wilkinson, 544 U.S. 709,\n\n722 (2005) (comparing RLUIPA’s protection of institutionalized persons’ religious\n\nexercise to “the Federal government’s accommodation of religious practice by\n\nmembers of the military”) (citing Katcoff v. Marsh, 755 F.2d 223, 225–29 (2d Cir.\n\n1985) (upholding the constitutionality of the military chaplaincy)).\n\n However, we must at the same time “sponsor an attitude on the part of\n\ngovernment that shows no partiality to any one group and that lets each flourish\n\naccording to the zeal of its adherents and the appeal of its dogma.” Zorach, 343\n\nU.S. at 313. The central constitutional problem here is that the state has regularly\n\nplaced a Christian cleric in the execution room to minister to the needs of Christian\n\n 14\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 15 of 28\n\n\ninmates, but has refused to provide the same benefit to a devout Muslim and all\n\nother non-Christians.3\n\n Alabama appears to have set up “precisely the sort of denominational\n\npreference that the Framers of the First Amendment forbade.” Larson, 456 U.S. at\n\n\n\n\n3\n Although Ray’s pleadings do not clearly and precisely frame the Establishment\nClause claim as denominational preference, based on everything we have seen and\nbased on everything Ray has said, we construe it this way. At oral argument, Ray’s\ncounsel very clearly framed the Establishment Clause issue in denominational\npreference terms, asking, “Why does Mr. Ray not get the same benefit as a Christian,\nnon-Catholic condemned inmate would?” and arguing that “If Mr. Ray were a\nstandard, everyday Protestant Lutheran Christian, he would have a spiritual advisor\nthere who could touch his hand and pray with him in his final moments. But because\nhe happens to be a Muslim . . . [he doesn’t] get that benefit.” Indeed, Ray’s counsel\nexpressly cited to and quoted from the command framed by the Supreme Court in\nEverson that the Establishment Clause bars the state from passing “laws which aid\none religion” or which “prefer one religion over another.” Everson, 330 U.S. at 15.\nMoreover, it is clear from the colloquy that the court and the parties understood that\nRay was asserting this claim, too. We add that the federal notice pleading standard\nonly requires allegations as to every material point necessary to sustain a claim on\nany legal theory, even if it is not the precise theory advanced by the plaintiff. See,\ne.g., St. Joseph’s Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th Cir.\n1986) (“The pleading ‘must contain either direct allegations on every material point\nnecessary to sustain a recovery on any legal theory, even though it may not be the\ntheory suggested or intended by the pleader, or contain allegations from which an\ninference fairly may be drawn that evidence on these material points will be\nintroduced at trial.’”); see also, e.g., Lyes v. City of Riviera Beach, 126 F.3d 1380,\n1387–88 (11th Cir. 1997) (finding claim premised on the Equal Protection Clause of\nthe Fourteenth Amendment to be sufficiently pled in complaint, although complaint\nmentioned only the Due Process Clause of the Fourteenth Amendment, where\ncomplaint “contain[ed] numerous allegations consistent with an equal protection\ncause of action”), vacated on other grounds by Lyes v. City of Riviera Beach, 166\nF.3d 1332 (11th Cir. 1999) (en banc).\n 15\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 16 of 28\n\n\n255. Thus, Alabama’s practice would be constitutional only if it meets the\n\nexacting standards of strict scrutiny.\n\n Under strict scrutiny, a law that advances a denominational preference may\n\nbe upheld if the government can demonstrate that the policy serves a compelling\n\ninterest and that it has been narrowly tailored to further that interest. The law is\n\nalso clear that the burden falls to the government, not to the challenger, to establish\n\na compelling interest and narrow tailoring. See Larson, 456 U.S. at 251 (“We . . .\n\nconclude that [the government has] failed to demonstrate that the [law at issue] is\n\n‘closely fitted’ to further a ‘compelling governmental interest.’”). The government\n\nmust carry its burden even at this preliminary stage. That is, Ray “must be deemed\n\nlikely to prevail unless the Government has shown that [his] proposed less\n\nrestrictive alternatives are less effective than” the challenged procedure. Ashcroft\n\nv. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004); see also Gonzales v. O\n\nCentro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (noting\n\nthat the government’s argument that plaintiff should bear the burden of disproving\n\ncompelling interest at the preliminary injunction stage was “foreclosed” by the\n\nCourt’s decision in Ashcroft).\n\n We do not doubt that Alabama has a powerful interest in the secure and\n\norderly administration of the death penalty. Indeed, “[i]t is well established that\n\nstates have a compelling interest in security and order within their prisons.”\n\n 16\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 17 of 28\n\n\nLawson v. Singletary, 85 F.3d 503, 512 (11th Cir. 1996) (citing Harris v. Forsyth,\n\n735 F.2d 1235 (11th Cir. 1984)); see also Fawaad v. Jones, 81 F.3d 1084, 1087\n\n(11th Cir. 1996) (“[M]aintaining security in a prison constitutes a compelling\n\ngovernmental interest.”). And the prison’s concerns may be at their apex during\n\nthe most consequential act of carrying out an execution. As a general matter and at\n\nleast at first blush, this seems as obvious to us as it did to the district court.\n\nMoreover, we can imagine many practical reasons as well why Alabama may wish\n\nto provide religious support and pastoral comfort of this kind to a condemned\n\nprisoner.\n\n As we see it, then, this case likely turns less on whether there is a compelling\n\ninterest and more on whether the state’s procedures are the least restrictive means\n\nor narrowly tailored to further that interest. We acknowledge again that we owe\n\ndeference to the state’s assessment of its security requirements, and we are\n\nreluctant to substitute our judgment for the Commissioner’s. Cf. O’Lone v. Estate\n\nof Shabazz, 482 U.S. 342, 349 (1987) (“[W]e have often said that evaluation of\n\npenological objectives is committed to the considered judgment of prison\n\nadministrators . . . .”). But we cannot simply rely on the unexplained ipse dixit of\n\nthe state that there are no less restrictive means in the face of Alabama’s obvious\n\ndenominational preference. To do so would ignore our constitutional obligations\n\nand the unambiguous command of the First Amendment that forbids the state from\n\n 17\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 18 of 28\n\n\nputting its power, prestige, and support behind one religious belief to the exclusion\n\nof all others. It remains the state’s burden to demonstrate that there are no other\n\nless restrictive means by which to protect its interests. See Ashcroft, 542 U.S. at\n\n666. And it does not jump off the page at us that there aren’t other less restrictive\n\nmeans to accomplish its ends. At the hearing, Ray’s counsel offered that the state\n\ncould readily pre-clear and pre-screen Ray’s Imam -- who, after all, has already\n\nbeen screened and allowed regularly to visit Muslim inmates at Holman since 2015\n\nand allowed to commune with Ray on the day of his execution, even in a holding\n\ncell next to the execution chamber. Alabama responded simply by saying it could\n\nnot do so.\n\n This may well be true, but the bare assertion does not make it so. Notably,\n\nAlabama did not provide the Court with any affidavit from the Warden or from any\n\nother prison official addressing in any way why there were not lesser measures\n\navailable to protect its interests and provide the same faith-based benefits to\n\nChristians and non-Christians alike. Nor did Alabama offer anything from its\n\nChaplain or from anyone else about the perceived risks or the things that a cleric\n\nmight need to learn in order to undertake this solemn and sensitive task. Alabama\n\nhas presented us with nothing in support of its claims.\n\n As the district court recognized, the proper determination of this significant\n\nEstablishment Clause claim will turn on critical facts that have not been presented\n\n 18\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 19 of 28\n\n\nto us on this barren record. Among other things, these facts may include the nature\n\nof the risk posed by allowing another cleric into the execution chamber, whether\n\nthe state can screen, pre-clear and train other clerics, how difficult and time\n\nconsuming that may be, and whether it could do so while meeting its obviously\n\nsignificant interest in maintaining security in the execution chamber. All we can\n\nsay at this stage -- indeed what we are obliged to say -- is that Alabama’s prison\n\nofficials apparently have favored one religious denomination to the detriment of all\n\nothers, that they have made only general claims about their compelling interest,\n\nand that they have offered nothing remotely establishing that their policy is\n\nnarrowly tailored to further that interest.\n\n We add that the trial judge never addressed the merits of Ray’s\n\nEstablishment Clause claim, suggesting only that the state’s agreement to remove\n\nthe Chaplain mooted the question. 4 This rationale misapprehends the nature of\n\n\n4\n In its mootness analysis, the district court relied on a footnote in Ray’s complaint,\nwhich represented that the Establishment Clause claim “[would] be moot if Mr. Ray\nprevails on Claims One and/or Two.” While the phrasing of this footnote is\nundoubtedly inartful, we are not bound by the parties’ jurisdictional representations.\nSee Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1000–01 (11th Cir.\n1982) (“The jurisdiction of a court over the subject matter of a claim involves the\ncourt’s competency to consider a given type of case and cannot be waived or\notherwise conferred upon the court by the parties.” (footnote omitted)). Nor do we\nfind as much clarity in the footnote as the district court did. Ray sought two distinct\nforms of relief: the presence of a Muslim spiritual advisor as he was about to die and\nthe exclusion of the prison’s Christian Chaplain. The state gave him only half. His\nclaim therefore is not moot. See De La Teja v. United States, 321 F.3d 1357, 1364\n(11th Cir. 2003) (“This remains a live controversy as to which we could provide\n 19\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 20 of 28\n\n\nRay’s Establishment Clause claim. Waiving the presence of the Christian\n\nChaplain, while still refusing admission to Ray’s Imam has provided Ray with only\n\nhalf of the relief he seeks; it does nothing to alleviate the core Establishment\n\nClause problem. If Ray were a Christian, he would have a profound benefit;\n\nbecause he is a Muslim, he is denied that benefit.\n\n Ray’s claim may well fit under the rubric of RLUIPA as well, though it\n\nseems to us more naturally framed by the Establishment Clause. 5 Notably,\n\nRLUIPA defines a substantial burden on free exercise in the broadest of terms --\n\nmuch broader than the Supreme Court’s First Amendment jurisprudence it\n\nresponded to. Indeed, as the Supreme Court has noted, “in an obvious effort to\n\neffect a complete separation from First Amendment case law, Congress deleted the\n\nreference to the First Amendment [in RLUIPA] and defined the ‘exercise of\n\n\n\n\nmeaningful relief, and accordingly the issue is not moot.”) (citing Al Najjar v.\nAshcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)).\n5\n RLUIPA provides in pertinent part:\n No government shall impose a substantial burden on the religious exercise of\n a person residing in or confined to an institution . . . even if the burden\n results from a rule of general applicability, unless the government\n demonstrates that imposition of the burden on that person —\n (1) is in furtherance of a compelling governmental interest; and\n (2) is the least restrictive means of furthering that compelling\n governmental interest.\n42 U.S.C. § 2000cc-1(a).\n 20\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 21 of 28\n\n\nreligion’ to include ‘any exercise of religion, whether or not compelled by, or\n\ncentral to, a system of religious belief.’” Burwell v. Hobby Lobby Stores, Inc.,\n\n134 S. Ct. 2751, 2761–62 (2014) (emphasis added) (quoting 42 U.S.C. § 2000cc-\n\n5(7)(A)). Moreover, in addition to including this “capacious” definition of\n\nreligious exercise, Congress expressly mandated that the statute “shall be construed\n\nin favor of a broad protection of religious exercise, to the maximum extent\n\npermitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-\n\n3(g); see also Holt v. Hobbs, 135 S. Ct. 853, 860 (2015).\n\n It may be that denying access to a Muslim cleric at the moment of death\n\nwould impose a substantial burden. We need not reach that question now, but we\n\nhighlight that RLUIPA’s strict scrutiny would -- just like in the Establishment\n\nClause context -- squarely place the burden on the government to demonstrate that\n\nits policy is narrowly tailored to serve a compelling governmental interest.\n\nMoreover, under RLUIPA’s compelling interest and least restrictive means\n\nanalysis, the statute “does not permit . . . unquestioning deference” to the\n\ngovernment’s assessment, Holt, 135 S. Ct. at 864, and Congress expressly\n\nenvisioned that the statute “may require a government to incur expenses in its own\n\noperations to avoid imposing a substantial burden on religious exercise,” 42 U.S.C.\n\n§ 2000cc-3(c). See also Holt, 135 S. Ct. at 860; Hobby Lobby, 134 S. Ct. at 2781.\n\n\n\n\n 21\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 22 of 28\n\n\n Although the district court briefly evaluated the RLUIPA claim on the\n\nmerits, it failed to grapple with any of these principles. The district court also\n\nimproperly shifted the burdens surrounding compelling interest and least restrictive\n\nmeans onto Ray. After first recognizing that RLUIPA places these burdens on the\n\ngovernment, it found in its application of the law to this case that “Ray has not\n\nshown that it is substantially likely that the State lacks a compelling interest or that\n\nthe State could use a less-restrictive means of furthering its interest,” and that “Ray\n\nhas not shown that it is substantially likely that the State could further its interest\n\nwhile allowing untrained, ‘free world’ spiritual advisors be in the death chamber.”\n\nWhile the burden of persuasion rests with the petitioner to show a substantial\n\nlikelihood of success on the merits, once he has made a prima facie showing of\n\ndenominational preference, Ashcroft and Gonzales make clear, as do the words of\n\nRLUIPA, that even at a preliminary stage, it is the government’s burden to\n\nestablish that there are no less restrictive means to adequately address its important\n\ninterest. At the end of the day, it is possible that there are no less restrictive means,\n\nbut the government must show us how and why that is so. Whether Ray’s claim is\n\nframed as arising under the Establishment Clause or RLUIPA, the burden rests\n\nwith Alabama, not Ray, to show a compelling interest and the adoption of means\n\nclosely fitted to that interest.\n\n\n\n\n 22\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 23 of 28\n\n\n Faced with this substantial Establishment Clause claim, and with precious\n\nlittle in the record to support the government’s interests and the fit between those\n\ninterests and the state’s policy, we are required to conclude, as we do, that Ray is\n\nsubstantially likely to succeed on the merits.\n\n B.\n\n The remainder of the factors we apply when considering a stay amount to a\n\nweighing of the equitable interests of the petitioner, the government, and the\n\npublic. See Arthur, 840 F.3d at 1321 (requiring the moving party to establish\n\n“irreparable injury,” lack of “substantial[] harm [to] the other litigant,” and that\n\n“the injunction would not be adverse to the public interest”). In this case, the\n\nequities fall as they often do in death cases, with the petitioner arguing that “he\n\nwill suffer irreparable harm if he is executed” in an unconstitutional manner while\n\nthe state risks only the “minimal inconvenience” of delay. Brooks, 810 F.3d at\n\n825. In the absence of a stay, Ray will die without the benefit, available to\n\nChristian inmates, of sharing his final moments with a cleric who shares his faith\n\nand who will be able to provide prayer, spiritual support and comfort at the\n\nmoment of death. Moreover, the public has a serious interest in the proper\n\napplication and enforcement of the Establishment Clause and RLUIPA.\n\n On the other hand, “as the Supreme Court has recognized, the state, the\n\nvictim, and the victim’s family also ‘have an important interest in the timely\n\n 23\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 24 of 28\n\n\nenforcement of [the inmate’s] sentence.’” Id. (quoting Hill v. McDonough, 547\n\nU.S. 573, 584 (2006)); see also Hill, 547 U.S. at 584 (“[E]quity must be sensitive\n\nto the State’s strong interest in enforcing its criminal judgments without undue\n\ninterference from the federal courts.”). Of course, neither Alabama nor the public\n\nhas any interest in carrying out an execution in a manner that violates the\n\ncommand of the Establishment Clause or the laws of the United States.\n\n The district court makes much of the fact that Ray’s claims have been\n\nbrought too close to the scheduled date for Ray’s execution. It stresses that we\n\nmust consider “the extent to which the inmate has delayed unnecessarily in\n\nbringing the claim,” Nelson v. Campbell, 541 U.S. 637, 649–50 (2004), and\n\nidentifies “a strong equitable presumption against the grant of a stay where a claim\n\ncould have been brought at such a time as to allow consideration of the merits\n\nwithout requiring entry of a stay,” Hill, 547 U.S. at 584 (quoting Nelson v.\n\nCampbell, 541 U.S. 637, 650 (2004)); Grayson v. Allen, 491 F.3d 1318, 1322\n\n(11th Cir. 2007). We agree as a matter of doctrine, but the district court seems to\n\nhave overlooked a key point: That the claim was brought at the last minute does\n\nnot necessarily establish that it was brought in a dilatory manner.\n\n In other cases, we have suggested that the equities may tend to weigh against\n\na stay when there has been no explanation offered why a § 1983 suit was brought\n\nat the eleventh hour to challenge policies that had long been in place. E.g.,\n\n 24\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 25 of 28\n\n\nRutherford v. McDonough, 466 F.3d 970, 974–76 (11th Cir. 2006) (dismissing\n\nchallenge to lethal injection protocols on equitable grounds based on delay,\n\nconsidering that the petitioner had raised identical claims in state court a month\n\nprior, and that others had challenged the protocols in state court over five years\n\nearlier); see also Powell v. Thomas, 643 F.3d 1300, 1305 (11th Cir. 2011) (finding\n\nthat the § 1983 statute of limitations begins running when “the facts supporting\n\nth[e] cause of action ‘should have been apparent to any person with a reasonably\n\nprudent regard for his rights’”) (quoting McNair v. Allen, 515 F.3d 1168, 1177\n\n(11th Cir. 2008)); Arthur v. King, 500 F.3d 1335, 1341–42 (11th Cir. 2007)\n\n(denying a stay and dismissing a § 1983 suit to obtain evidence for DNA testing in\n\npart because the claim had been available “through a § 1983 action for at least five\n\nyears”).\n\n Here, however, arguments suggesting unreasonable delay on Ray’s part are\n\nfar less compelling. For starters, a review of the relevant statutory text would not\n\nhave put Ray or his lawyers on notice that the institution’s Christian Chaplain\n\nwould always be present in the execution chamber or that Ray’s Imam could never\n\nbe. The Alabama Code only says that certain persons “may be present at an\n\nexecution”; it does not say that the Chaplain will be present. Ala. Code § 15–18–\n\n83(a) (emphasis added). It lists both the Chaplain and “[t]he spiritual advisor of\n\nthe condemned” as among those who “may be present,” without drawing any\n\n 25\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 26 of 28\n\n\ndistinction between where these two individuals will be situated during the\n\nexecution. Id. Nor does the statute distinguish between the execution chamber and\n\nthe witness viewing room, nor, finally, does it say anything about whether the\n\nChaplain may have contact with the inmate at the critical moment. Id. Even the\n\nmost careful review of the statute by Ray or his lawyers would not have revealed\n\nthat the prison’s Christian Chaplain will stand in the execution chamber while any\n\nother spiritual advisor, relatives or friends, and members of the press are in a\n\nseparate room.\n\n On January 23, only after Ray requested and was denied a religious\n\naccommodation, he asked the Warden and the Chaplain to see the prison’s policies\n\nrequiring that Holman’s prison Chaplain, and only the prison Chaplain, would be\n\nplaced in the execution chamber during an execution; he was told that he could not\n\nsee Alabama’s written policy. There is little reason, then, to think that he must\n\nhave known the contents of these confidential policies at an earlier date. Indeed,\n\nthe fact that these procedures have been filed thoroughly redacted and under seal is\n\na further indication that Alabama’s execution procedures are closely guarded by\n\nthe ADOC.\n\n Thus we are left with only the suggestion that he must have known ADOC\n\npolicies from an earlier date because he sat on death row for a lengthy period of\n\ntime. But the state has provided no evidence that Ray would have learned at any\n\n 26\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 27 of 28\n\n\npoint about these polices or that he could have filed a lawsuit challenging these\n\npolicies any earlier than he did. According to Ray -- and it is unrebutted on this\n\nrecord -- he first requested and was denied accommodations based on his religion\n\non January 23. He filed his complaint in district court on January 28, just five days\n\nlater (including two days which fell over a weekend). The state has not provided\n\nus with any evidence that Ray knew or should have known that his religious beliefs\n\nwould not be accommodated prior to January 23, or that he had any opportunity to\n\nrequest an accommodation prior to that date.\n\n Given the paucity of evidence, it is not altogether surprising that the state\n\nhas not even clearly argued that Ray knew or should have known sooner that his\n\nreligious beliefs would not be accommodated. The state argued before the district\n\ncourt only at the highest order of abstraction that “Mr. Ray is responsible for the\n\ndelay” because “[c]ertainly Mr. Ray could have pursued this claim or pursued his\n\ndesire to have a private spiritual advisor at an earlier time.” To support these\n\nclaims, the state offers only the barest assertions about common knowledge in the\n\nprison. Even if we were to assume that some prisoners on death row are aware that\n\nthe prison Chaplain has been present in the execution chamber in the past, there is\n\nnot much else to support the inference that Ray knew or should have known that\n\nthe Chaplain’s presence was required, let alone that he should have known his\n\nrequest for an imam would be denied. The state has not suggested that any non-\n\n 27\n\f Case: 19-10405 Date Filed: 02/06/2019 Page: 28 of 28\n\n\nChristian prisoners, like Ray, have requested or been denied an accommodation in\n\nthe past in a manner that might even arguably have placed someone like Ray on\n\nnotice. Nor has the state suggested that its confidential procedures, filed under seal\n\nwith the district court, might have provided any other inmate with any notice. The\n\nstate has not suggested that these procedures were made available to anyone.\n\n The long and short of it is that Ray has provided an altogether plausible\n\nexplanation for why the claims were not filed in district court sooner and the state\n\nhas neither argued nor produced any evidence that the petitioner was aware that the\n\nclaims were available at an earlier date.\n\n As we see it, the equities weigh in favor of granting a stay.\n\n Based on the foregoing analysis, Ray’s petition for an emergency stay of\n\nexecution is GRANTED. The Clerk of Court is directed to EXPEDITE this appeal\n\nso that we may promptly resolve these claims.\n\n\n\n\n 28", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365120/", "author_raw": "MARCUS, Circuit Judge:"}]}	MARCUS	WILSON	MARTIN	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587867/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,729	Omar PAEZ, Plaintiff - Appellee, Yovany Diaz, Jon Anterio, Lyndean Peters, Consolidated Plaintiffs - Appellees, v. Claudia MULVEY, an Individual, John Loyal, Kelly Sullivan, an Individual, Robert E. Breeden, an Individual, Defendants - Appellants, Florida Department of Law Enforcement, Et Al., Defendants.	Omar Paez v. Claudia Mulvey	2019-02-08	16-16863	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Carnes, Marcus, Ross", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 16-16863 Date Filed: 02/08/2019 Page: 1 of 29\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-16863\n ________________________\n\n D.C. Docket No. 1:15-cv-20444-JAL\n\n\nOMAR PAEZ,\n\n Plaintiff - Appellee,\n\nYOVANY DIAZ,\nJON ANTERIO,\nLYNDEAN PETERS,\n\n Consolidated Plaintiffs - Appellees,\n\nversus\n\nCLAUDIA MULVEY,\nan individual,\nJOHN LOYAL,\nKELLY SULLIVAN,\nan individual,\nROBERT E. BREEDEN,\nan individual,\n\n Defendants - Appellants,\n\nFLORIDA DEPARTMENT OF LAW ENFORCEMENT, et al.,\n\n Defendants.\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 2 of 29\n\n\n ________________________\n\n Appeals from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (February 8, 2019)\n\nBefore CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, ∗ District\nJudge.\n\nMARCUS, Circuit Judge:\n\n In 2011, Sergeant Omar Paez, Sergeant Lyndean Peters, and Officer Yovany\n\nDiaz (“the Appellees”) of the Golden Beach Police Department were arrested on\n\nvarious charges of public corruption. The officers were accused of, among other\n\nthings, fraudulently failing to report off-duty police work that would have required\n\nthem to pay administrative fees to the Department. The officers were never tried\n\nand the criminal charges were dropped more than three years later. They now say\n\nthe arresting officers, Detective John Loyal of the Miami-Dade Police\n\nDepartment’s (“MDPD”) Public Corruption Investigations Bureau, and Special\n\nAgent Claudia Mulvey of the Florida Department of Law Enforcement (“FDLE”),\n\nas well as Loyal and Mulvey’s supervisors, Sergeant Kelly Sullivan (MDPD) and\n\nSupervisory Agent Robert Breeden (FDLE), violated their constitutional rights by\n\nintentionally omitting exonerating information from the probable cause affidavits\n\n\n\n ∗ The Honorable Eleanor L. Ross, United States District Judge for the Northern District\nof Georgia, sitting by designation.\n 2\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 3 of 29\n\n\nthat secured their arrest warrants. The district court denied Loyal, Mulvey, and\n\ntheir supervisors (“the Appellants”) the protection of qualified immunity. But even\n\nif the omitted information had been included in the affidavits, there would still\n\nhave been probable cause to believe each of the Appellees had engaged in a\n\nscheme to defraud in violation of Florida Statute § 817.034(4). Thus, there was no\n\nconstitutional error in the officers’ arrests pursuant to warrants based on those\n\naffidavits, and Loyal and Mulvey, as well as their supervisors, were entitled to\n\nqualified immunity.\n\n\n I.\n\n A.\n\n Appellees Paez, Peters, and Diaz were police officers in the Golden Beach\n\nPolice Department (“GBPD”) in the late 2000s. MDPD Detective John Loyal and\n\nFDLE Special Agent Claudia Mulvey were assigned to investigate alleged\n\nmisconduct at the GBPD. Loyal and Mulvey jointly submitted probable cause\n\naffidavits to a judge sitting in Florida’s Eleventh Judicial Circuit Court in Miami-\n\nDade County that led to the issuance of arrest warrants for Paez, Peters, and Diaz.\n\nAll three were arrested in early 2011 and subsequently released on bond. The\n\ncriminal charges against them were dropped by the State Attorney’s Office and the\n\ncase was dismissed in March 2014. The issue before us now is whether those\n\n\n\n 3\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 4 of 29\n\n\narrests violated the Fourth Amendment because of exculpatory information left out\n\nof the warrant affidavits.\n\n Each probable cause affidavit outlined two types of allegedly criminal\n\nbehavior. First, because Golden Beach Police Department official time logs and\n\noutside employer time logs for off-duty work showed work performed during the\n\nsame hours, the affiants averred that Paez, Peters, and Diaz were paid for off-duty\n\nwork while simultaneously billing hours for work performed at the GBPD. In\n\naddition, time logs taken from some outside employers revealed off-duty work that\n\nwas not recorded by the GBPD. The Town of Golden Beach (“the Town”)\n\ncollected a five-dollar-per-hour administrative fee for off-duty police work to\n\ncover costs like insurance and the use of police vehicles. Because the invoices\n\nPaez, Peters, and Diaz submitted to the GBPD for off-duty work showed fewer\n\nhours than the time records kept by their off-duty employers, the affiants said that\n\nPaez, Peters, and Diaz had avoided payment of the required administrative costs.\n\n According to the Paez probable cause affidavit, signed by Loyal and\n\nMulvey, Paez had worked 247.5 hours of unrecorded off-duty work, which would\n\nhave required him to pay $1,237.50 in administrative fees to the Town. The\n\naffidavit also identified two occasions on which Paez worked off-duty for private\n\nemployers during the same hours he was said to have worked for the GBPD,\n\nresulting in $212.49 of apparent “double compensation” from the Department. The\n\n\n 4\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 5 of 29\n\n\naffidavit urged that there was probable cause to charge Paez with one count of an\n\nOrganized Scheme to Defraud in violation of Florida Statute § 817.034(4)(a)(3)\n\nand one count of Grand Theft in violation of Florida Statute § 812.014(2)(c).\n\n The Peters affidavit, also signed by Loyal and Mulvey, found that Peters\n\nengaged in 199.5 hours of unrecorded off-duty work, which would have required\n\nhim to pay $997.50 in administrative fees to the Town. The affidavit also\n\nidentified eleven occasions on which Peters worked off-duty for private employers\n\nduring hours he was listed as having worked for the GBPD, resulting in $1,380.12\n\nof apparent “double compensation” from the Department. The affidavit said there\n\nwas probable cause to charge Peters with one count of an Organized Scheme to\n\nDefraud in violation of Florida Statute § 817.034(4)(a)(3), eleven counts of\n\nOfficial Misconduct in violation of Florida Statute § 838.022, one count of Grand\n\nTheft in violation of Florida Statute § 812.014, and one count of False and\n\nFraudulent Insurance Claims in violation of Florida Statute § 817.234. 1\n\n\n\n 1\n This count related only to Peters and was not connected in any way to the other fraud\nand official misconduct charges. The affidavit averred that Peters had committed insurance\nfraud by submitting a $6,100 insurance claim for replacement of a police canine. Sergeant Peters\nhad been rear-ended by a drunk driver and submitted claims to the driver’s insurance company\nfor Peters’ personal injury in the amount of $10,000, and for $10,000 in property damage on\nbehalf of the Town, which included $3,900 in damages to a police vehicle and $6,100 for the\nreplacement of the police canine he said had to be retired due to injuries sustained in the\naccident. The affidavit claimed that, according to veterinary records, the canine had “exhibited\nsome soreness” but had not “sustain[ed] any injuries” in the accident that led to the insurance\nclaim. Instead, the treating veterinarian had previously diagnosed a spinal condition and had\nrecommended restricted duty or retirement for the canine before the car accident.\n\n 5\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 6 of 29\n\n\n Finally, the Diaz affidavit, also signed by Loyal and Mulvey, identified 344\n\nhours of unrecorded off-duty work, which would have required the payment of\n\n$1,720 in administrative fees to the Town. The affidavit also identified five dates\n\non which Diaz worked off-duty for private employers during hours he was listed as\n\nhaving worked for the GBPD, resulting in $312.00 of apparent “double\n\ncompensation” from the Department. The affidavit claimed that there was probable\n\ncause to charge Diaz with one count of an Organized Scheme to Defraud in violation\n\nof Florida Statute § 817.034(4)(a)(3), two counts of Official Misconduct in violation\n\nof Florida Statute § 838.022, and one count of Grand Theft in violation of Florida\n\nStatute § 812.014(2)(c).\n\n B.\n\n After the criminal charges against them were dropped by the State Attorney,\n\nPaez, Peters, and Diaz sued Loyal, Mulvey, Breeden, Sullivan, Miami-Dade\n\nCounty, the FDLE, and the Town of Golden Beach in Florida’s Eleventh Judicial\n\nCircuit.2 The lawsuits were promptly removed to the United States District Court\n\n\n\n\n The civil rights complaint alleged that based on veterinary records and the accident report\navailable to Mulvey and Loyal during their investigation, it was clear the dog had been injured in\nthe accident and that Peters had received no personal monetary benefit from the insurance\npayout. Because we find there was probable cause to believe Peters engaged in an organized\nscheme to defraud, we need not address whether there was probable cause to believe Peters had\nengaged in insurance fraud as well. See infra at 13–14.\n 2\n The district court dismissed the claims against FDLE and Miami-Dade County, and\nPlaintiffs withdrew their claim against the Town. Those claims are not relevant to this appeal.\n 6\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 7 of 29\n\n\nfor the Southern District of Florida, where they were consolidated and transferred\n\nto a single district judge. Each of the Appellees brought six claims relevant to this\n\nappeal: four § 1983 claims alleging that each of the four Appellants violated their\n\nFourth Amendment rights by initiating a malicious prosecution, as well as state\n\ncommon law malicious prosecution claims against Loyal and Sullivan.\n\n In relevant part, the complaint urged that the affidavits submitted by Mulvey\n\nand Loyal should have included additional -- and importantly, exonerating --\n\ninformation known to the affiants. This information, the complaint said, would\n\nhave revealed that their conduct was not criminal. As for the unpaid administrative\n\nfees, the complaint alleged that the GBPD “had no authority” to charge the fees to\n\nthe officers. In addition, the Appellees “had paid, and in fact had actually\n\noverpaid, the claimed administrative fees.” Meanwhile, the claimed incidents of\n\noverlapping on-duty and off-duty work, the complaint further alleged, represented\n\nthe practice of using “flex time” to avoid overtime billing, a practice “well known\n\nto, and condoned by” the GBPD. That is, while the records of hours worked at the\n\nGBPD did not reflect the actual hours worked, the Department allowed its law\n\nenforcement officers to engage in this practice.\n\n The complaint also asserted that Mulvey and Loyal knew that the officers’\n\nconduct was not criminal or improper. It referenced five relevant pieces of omitted\n\nevidence:\n\n\n 7\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 8 of 29\n\n\n [D]uring the investigation, Mulvey and Loyal: (1) were given a copy\n of the [Collective Bargaining Agreement for the GBPD], that clearly\n and by its express terms, did not authorize Golden Beach to charge its\n police officers the administrative fees but only authorized the off-duty\n employers to be charged; (2) secured witness statements from Golden\n Beach Chief Skinner that part-time police officers such as . . . for part\n of the covered period Diaz, were not covered by the CBA and its\n administrative fee policy; (3) chose to ignore undisputed evidence that\n Plaintiffs Paez, Peters, and Diaz had fully paid -- and had even\n overpaid -- the claimed administrative fees; (4) secured a sworn\n statement by Golden Beach Town Manager A. Diaz that Golden\n Beach officers regularly paid the fees late and Golden Beach would\n accept those late payments; [and] (5) were provided with sworn\n statements of [Police Chief] Skinner in 2010 and Golden Beach Police\n Captain Joseph Barasoain (“Barasoain”) in 2011 that discussed the\n “flex time” policy and were thus informed about the “flex time”\n practice as justification for the alleged double reporting of off-duty\n and on-duty work hours . . . .\n\nThe complaint said that since Mulvey and Loyal knew these facts, their affidavits\n\ncontained knowingly false and misleading statements and omitted substantial\n\nexculpatory evidence.\n\n The complaint urged that Mulvey’s supervisor (Breeden) and Loyal’s\n\nsupervisor (Sullivan) also were liable for the misrepresentations made by officers\n\nMulvey and Loyal. Breeden and Sullivan allegedly knew about the exculpatory\n\nevidence and also knew there was no probable cause to believe any crimes had\n\nbeen committed. Yet, they wrongfully approved the arrest warrant affidavits. The\n\ncomplaint added that Breeden and Sullivan were made aware of the contradictory\n\nfacts by Mulvey and Loyal, and from their review of the investigative reports and\n\nall of the evidence and testimony that had been compiled.\n 8\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 9 of 29\n\n\n The Appellants jointly moved the district court to dismiss all of the claims,\n\narguing that there was no wrongful arrest and no malicious prosecution, and thus\n\nthat they were entitled to qualified immunity. The district court granted the motion\n\nin part and denied it in part. It rejected the motion to dismiss the § 1983 malicious\n\nprosecution claims and the state common law malicious prosecution claims leveled\n\nagainst Mulvey and Loyal. The trial court concluded that the complaint plausibly\n\nalleged that Mulvey and Loyal intentionally or recklessly made material omissions\n\nin their probable cause affidavits and that the inclusion of the omitted information\n\nwould have negated any finding of probable cause. Thus, Mulvey and Loyal were\n\nnot entitled to qualified immunity.\n\n As for the § 1983 supervisory liability claims, the district court dismissed\n\nPaez and Diaz’s § 1983 claims against Breeden because Breeden was no longer\n\nMulvey’s supervisor at the time the relevant affidavits were submitted. However,\n\nthe court denied the motion to dismiss all three § 1983 supervisory liability claims\n\nagainst Sullivan and Peters’ § 1983 supervisory liability claim against Breeden;\n\nlike Mulvey and Loyal, the supervisors were not entitled to qualified immunity.\n\n Mulvey, Breeden, Loyal, and Sullivan timely filed this interlocutory appeal.\n\n II.\n\n “We review de novo a district court’s decision to grant or deny the defense\n\nof qualified immunity on a motion to dismiss, accepting the factual allegations in\n\n\n 9\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 10 of 29\n\n\nthe complaint as true and drawing all reasonable inferences in the [nonmoving\n\nparty’s] favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003).\n\n A.\n\n Qualified immunity protects public officers “from undue interference with\n\ntheir duties and from potentially disabling threats of liability.” Harlow v.\n\nFitzgerald, 457 U.S. 800, 806 (1982). It allows government officials to “carry out\n\ntheir discretionary duties without the fear of personal liability or harassing\n\nlitigation.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009). “Because\n\nqualified immunity is a defense not only from liability, but also from suit, it is\n\nimportant for a court to ascertain the validity of a qualified immunity defense as\n\nearly in the lawsuit as possible.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.\n\n2002) (quotation omitted).\n\n In order to establish qualified immunity, a defendant first must show that she\n\nwas acting within the scope of her discretionary authority at the time of the alleged\n\nmisconduct. See, e.g., Oliver, 586 F.3d at 905; O’Rourke v. Hayes, 378 F.3d 1201,\n\n1205 (11th Cir. 2004). No one disputes that Mulvey and Loyal were acting within\n\nthe scope of their discretionary authority in investigating corruption in the Golden\n\nBeach Police Department, and in submitting probable cause affidavits, or that\n\nBreeden and Sullivan were acting within the scope of their discretionary authority\n\nin supervising Mulvey and Loyal.\n\n\n 10\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 11 of 29\n\n\n Once a defendant has established that she was acting within her\n\ndiscretionary authority, the burden shifts to the plaintiff to show that qualified\n\nimmunity is not appropriate. Lee, 284 F.3d at 1194. The arresting officer would\n\nbe entitled to qualified immunity unless the plaintiff establishes that “(1) [she]\n\nviolated a federal statutory or constitutional right, and (2) the unlawfulness of [her]\n\nconduct was ‘clearly established at the time.’” Manners v. Cannella, 891 F.3d 959,\n\n968 (11th Cir. 2018) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589\n\n(2018)). These two requirements may be analyzed in any order. See Pearson v.\n\nCallahan, 555 U.S. 223, 236 (2009). The questions, then, boil down to whether\n\nMulvey and Loyal’s conduct violated the Fourth Amendment, and whether it was\n\nclearly established at the time that their conduct did so. Because we conclude that\n\nMulvey and Loyal did not violate any constitutional right, we have no reason to\n\naddress separately the “clearly established” prong.\n\n B.\n\n A constitutional claim brought pursuant to § 1983 must begin with the\n\nidentification of a specific constitutional right that has allegedly been infringed.\n\nAlbright v. Oliver, 510 U.S. 266, 270 (1994). Paez, Peters, and Diaz say that each\n\nof the Appellants violated the Fourth Amendment in pursuing malicious\n\nprosecutions against them. In order “[t]o establish a federal malicious prosecution\n\nclaim under § 1983, a plaintiff must prove (1) the elements of the common law tort\n\n\n 11\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 12 of 29\n\n\nof malicious prosecution, and (2) a violation of her Fourth Amendment right to be\n\nfree of unreasonable seizures.” See, e.g., Kingsland v. City of Miami, 382 F.3d\n\n1220, 1234 (11th Cir. 2004). “[T]he constituent elements of the common law tort\n\nof malicious prosecution include[]: (1) a criminal prosecution instituted or\n\ncontinued by the present defendant; (2) with malice and without probable cause;\n\n(3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the\n\nplaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).\n\n This appeal turns on the second part of the federal malicious prosecution\n\nclaim: whether Paez, Peters, and Diaz were unreasonably seized in violation of the\n\nFourth Amendment. If the conduct alleged did not violate the Fourth Amendment,\n\nthe Appellants would be entitled to qualified immunity and the suit must be\n\ndismissed. A § 1983 malicious prosecution claim includes, though is not limited\n\nto, an unconstitutional arrest. See, e.g., Kingsland, 382 F.3d at 1235; Kjellsen v.\n\nMills, 517 F.3d 1232, 1238 (11th Cir. 2008); Whiting v. Traylor, 85 F.3d 581, 584\n\n(11th Cir. 1996); see also Heck v. Humphrey, 512 U.S. 477, 484 (1994). An arrest\n\nmade without probable cause is an unreasonable seizure. See, e.g., Grider v. City\n\nof Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). The Fourth Amendment\n\nprovides, in pertinent part, that “no Warrants shall issue, but upon probable cause,\n\nsupported by Oath or affirmation,” U.S. Const. amend. IV, and the law requires\n\nthat a warrant for an arrest be supported by “sufficient information to establish\n\n\n 12\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 13 of 29\n\n\nprobable cause,” Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003) (citing\n\nFranks v. Delaware, 438 U.S. 154, 164 (1978)); see also Illinois v. Gates, 462 U.S.\n\n213, 238–39 (1983). Probable cause, in turn, is established “when the facts and\n\ncircumstances within the officer’s knowledge, of which he or she has reasonably\n\ntrustworthy information, would cause a prudent person to believe, under the\n\ncircumstances shown, that the suspect has committed, is committing, or is about to\n\ncommit an offense.” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003)\n\n(emphasis omitted) (quoting McCormick v. City of Fort Lauderdale, 333 F.3d\n\n1234, 1243 (11th Cir. 2003)).\n\n The affidavits alleged that there was probable cause to believe each Appellee\n\nhad committed multiple crimes. At oral argument, all of the parties conceded that\n\nthe existence of probable cause (or even arguable probable cause) as to any one\n\noffense would defeat a § 1983 malicious prosecution claim. Though this issue is\n\nunresolved in our case law pertaining to § 1983 malicious prosecution claims, we\n\nhave said that arguable probable cause as to any one offense is sufficient to defeat\n\n§ 1983 claims for other Fourth Amendment violations, including false arrest and\n\nunlawful searches. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.\n\n1997) (finding officer entitled to qualified immunity when a misstatement in a\n\nsearch warrant vitiated arguable probable cause as to one offense, but the\n\nmisstatement was “not relevant to the existence of probable cause to believe that . .\n\n\n 13\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 14 of 29\n\n\n. other . . . crimes had been committed”); Bailey v. Bd. of Cty. Comm’rs of\n\nAlachua Cty., 956 F.2d 1112, 1119 n.4 (11th Cir. 1992) (“The validity of an arrest\n\ndoes not turn on the offense announced by the officer at the time of the arrest.”).\n\nBased on the parties’ concessions, we need not resolve the question as it relates to\n\nmalicious prosecution. Rather, we assume arguendo that a finding of probable\n\ncause (or arguable probable cause) as to one offense announced in the affidavit\n\nwould defeat the Appellees’ § 1983 malicious prosecution claims.\n\n Probable cause “‘requires only a probability or substantial chance of\n\ncriminal activity, not an actual showing of such activity.’ Probable cause ‘is not a\n\nhigh bar.’” Wesby, 138 S. Ct. at 586 (first quoting Gates, 462 U.S. at 243–44 n.13;\n\nthen quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014)). Far from\n\n“‘requir[ing] convincing proof’ that [an] offense was committed,” probable cause\n\nis a flexible and fluid concept, that looks instead to the totality of the circumstances\n\nto determine the reasonableness of the officer’s belief that a crime has been\n\ncommitted. Manners, 891 F.3d at 968 (quoting Bailey, 956 F.2d at 1120).\n\nAccordingly, “[t]he test for probable cause is not reducible to ‘precise definition or\n\nquantification,’” and “[f]inely tuned standards such as proof beyond a reasonable\n\ndoubt or by a preponderance of the evidence . . . have no place in the [probable-\n\ncause] decision.’” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (first quoting\n\n\n\n\n 14\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 15 of 29\n\n\nMaryland v. Pringle, 540 U.S. 366, 371 (2003); then quoting Gates, 462 U.S. at\n\n235).\n\n Importantly, as we noted in Manners, an affirmative defense to an alleged\n\ncrime does not necessarily vitiate probable cause. Manners, 891 F.3d at 971–72.\n\nIndeed, “arresting officers, in deciding whether probable cause exists, are not\n\nrequired to sift through conflicting evidence or resolve issues of credibility, so long\n\nas the totality of the circumstances present a sufficient basis for believing that an\n\noffense has been committed.” Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.\n\n2002), abrogated on other grounds by Lozman v. City of Riviera Beach, 138 S. Ct.\n\n1945 (2018). This is so, in part, because probable cause is a preliminary\n\ndetermination made initially in an ex parte proceeding. Again, it does not require\n\nanything close to conclusive proof or proof beyond a reasonable doubt that a crime\n\nwas in fact committed, or even a finding made by a preponderance of the evidence.\n\nSee Manners, 891 F.3d at 968. A law enforcement officer is not required to\n\nresolve every inconsistency found in the evidence. Moreover, police officers\n\naren’t lawyers; we do not expect them to resolve legal questions or to weigh the\n\nviability of most affirmative defenses. See Williams v. City of Albany, 936 F.2d\n\n1256, 1260 (11th Cir. 1991) (“Whether the statute of limitations bars a prosecution\n\nis a question of law. The officers properly deferred legal decisions to the district\n\nattorney.”). So long as it is reasonable to conclude from the body of evidence as a\n\n\n 15\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 16 of 29\n\n\nwhole that a crime was committed, the presence of some conflicting evidence or a\n\npossible defense will not vitiate a finding of probable cause. The touchstone\n\nremains the reasonableness of the officer’s conduct.\n\n It is also true that officers may not lie about or conceal critical information.\n\nThe Supreme Court has held that the Fourth Amendment demands a warrant\n\naffiant provide information with a reasonable belief in its veracity:\n\n [W]hen the Fourth Amendment demands a factual showing sufficient\n to comprise ‘probable cause,’ the obvious assumption is that there will\n be a truthful showing. . . . This does not mean “truthful” in the sense\n that every fact recited in the warrant affidavit is necessarily correct . . .\n [but] surely it is to be “truthful” in the sense that the information put\n forth is believed or appropriately accepted by the affiant as true.\n\nFranks, 438 U.S. at 165–66. Intentional or reckless material misstatements or\n\nomissions in a warrant affidavit thus could violate the Fourth Amendment. Kelly\n\nv. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994). Negligent misstatements or\n\nomissions, on the other hand, do not. Id.\n\n We have employed a two-part test to determine whether a misstatement in\n\nan officer’s warrant affidavit amounts to a violation of the Fourth Amendment.\n\nFirst, we ask whether there was an intentional or reckless misstatement or\n\nomission. Then, we examine the materiality of the information by inquiring\n\nwhether probable cause would be negated if the offending statement was removed\n\nor the omitted information included. See United States v. Kirk, 781 F.2d 1498,\n\n1502 (11th Cir. 1986) (“[W]e must consider: (1) whether the alleged misstatements\n 16\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 17 of 29\n\n\nin the affidavit were made either intentionally or in reckless disregard for the truth,\n\nand, if so, (2) whether, after deleting the misstatements, the affidavit is insufficient\n\nto establish probable cause.” (citing Franks, 438 U.S. 154)); see also Madiwale,\n\n117 F.3d at 1326–27 (“[A] warrant affidavit violates the Fourth Amendment when\n\nit contains omissions made intentionally or with a reckless disregard for the\n\naccuracy of the affidavit . . . if inclusion of the omitted facts would have prevented\n\na finding of probable cause.” (internal citation and quotation omitted)); Stewart v.\n\nDonges, 915 F.2d 572, 582 n.13 (10th Cir. 1990) (“Whether the omitted statement\n\nwas material is determined by examining the affidavit as if the omitted information\n\nhad been included and inquiring if the affidavit would still have given rise to\n\nprobable cause for the warrant.”).\n\n Three basic rules, then, guide our consideration today: (1) a warrant for\n\narrest must establish probable cause for an offense; (2) a warrant affidavit must\n\ncontain truthful statements that do support probable cause; and (3) an affidavit’s\n\nomissions may lead to an unreasonable and unconstitutional warrant-based arrest if\n\ninformation that the affiant knew about but intentionally or recklessly disregarded\n\nnegates a finding of probable cause. Because at this stage in the proceedings we\n\nmust accept the facts as alleged in the complaint as true, we take as true that the\n\nexculpatory information was known to Loyal and Mulvey and their omission was\n\nmade either intentionally or in reckless disregard of the truth. Our only question,\n\n\n 17\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 18 of 29\n\n\nthen, is whether the affidavits still would have established probable cause to\n\nbelieve the officers had violated Florida Statute § 817.034(4), if they had included\n\nthe omitted information that they knew about. If so, Mulvey and Loyal did not\n\nviolate the Fourth Amendment, nor did their supervisors, and each of them would\n\nbe entitled to qualified immunity.\n\n Paez, Peters, and Diaz face a difficult road in perfecting their § 1983 claims.\n\nAs the Supreme Court has explained in a similar context, “the . . . standard of\n\nobjective reasonableness . . . defines the qualified immunity accorded an officer\n\nwhose request for a warrant allegedly caused an unconstitutional arrest. Only\n\nwhere the warrant application is so lacking in indicia of probable cause as to render\n\nofficial belief in its existence unreasonable will the shield of immunity be lost.”\n\nMalley v. Briggs, 475 U.S. 335, 344–45 (1986) (citation omitted); see also id. at\n\n341 (“Defendants will not be immune if, on an objective basis, it is obvious that no\n\nreasonably competent officer would have concluded that a warrant should issue;\n\nbut if officers of reasonable competence could disagree on this issue, immunity\n\nshould be recognized.”). Put another way, if the affidavits (including the omitted\n\ninformation) would have demonstrated even arguable probable cause -- that a\n\nreasonable officer could have believed an offense was committed -- then the\n\nofficers are entitled to qualified immunity. See, e.g., Grider, 618 F.3d at 1257.\n\n\n\n\n 18\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 19 of 29\n\n\nHere, we find that the affidavits would have established not just arguable probable\n\ncause, but probable cause itself.\n\n IV.\n\n A.\n\n We consider the § 1983 malicious prosecution claims against Mulvey and\n\nLoyal together because the § 1983 claims levelled against Mulvey and Loyal are\n\nessentially the same. Both Mulvey and Loyal swore and signed each of the\n\naffidavits. Loyal was referred to as the “Affiant” and Mulvey as the “Co-Affiant.”\n\nThe complaint alleges that Mulvey and Loyal conducted the investigation together\n\nand that each knew about the relevant information that the Appellees claim was\n\nomitted. In addition, although Mulvey and Loyal are represented by different\n\ncounsel on appeal, each has adopted the arguments of the other.\n\n After reviewing all of the relevant information -- what was included and\n\nwhat was omitted -- there still was probable cause to believe Paez, Peters, and Diaz\n\nhad engaged in an organized scheme to defraud in violation of Florida’s criminal\n\nlaw, and that, therefore, there was no violation of the Fourth Amendment. Reliable\n\ninformation described in the affidavits still would have led a reasonable officer to\n\nbelieve that Paez, Peters, and Diaz intentionally failed to report off-duty work\n\nhours that would have required them to pay administrative fees. The omissions do\n\nnot undercut the reasonableness of the belief. Among other things, the affidavits\n\n\n 19\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 20 of 29\n\n\nasserted probable cause to charge each of the three law enforcement officers with\n\nengaging in an organized scheme to defraud in violation of the Florida\n\nCommunications Fraud Act, Florida Statute § 817.034. The relevant provision of\n\nFlorida’s penal code makes it a crime to “engage[] in a scheme to defraud and\n\nobtain[] property thereby.” Fla. Stat. § 817.034(4)(a). “Property” is defined as\n\n“anything of value.” Fla. Stat. § 817.034(3)(c). A “scheme to defraud” is “a\n\nsystematic, ongoing course of conduct with intent to defraud one or more persons,\n\nor with intent to obtain property from one or more persons by false or fraudulent\n\npretenses, representations, or promises or willful misrepresentations of a future\n\nact.” Fla. Stat. § 817.034(3)(d). To “defraud” means to “cause injury or loss to (a\n\nperson or organization) by deceit; to trick (a person or organization) in order to get\n\nmoney.” Defraud, Black’s Law Dictionary 516 (10th ed. 2014) (internal\n\npunctuation omitted).\n\n Although there are countless ways to engage in a scheme to defraud --\n\nindeed the concept is as wide as the imagination of man -- the conduct here would\n\nfit the basic statutory definitions. Having repeatedly and deceptively failed to\n\nreport off-duty work hours and having thereby deprived the Town of fees to which\n\nit was rightfully entitled, the Appellees appeared to have engaged in a “systematic,\n\nongoing course of conduct with intent to defraud.” Fla. Stat. § 817.034(3).\n\nProbable cause, then, comes down to this: since Paez, Peters, and Diaz repeatedly\n\n\n 20\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 21 of 29\n\n\nwithheld relevant information about off-duty work in order to avoid payment of\n\nfees, there was sound reason to believe each had engaged in an organized scheme\n\nto defraud. The affidavits themselves set out sufficient facts drawn from more than\n\none reliable source that would lead a reasonable officer to believe the Appellees\n\nrepeatedly withheld information in order to avoid paying fees. The claimed\n\nomissions do not undermine the reasonableness of the affidavits.\n\n The civil rights complaint references three pieces of omitted information:\n\nthat the administrative fees were not legally owed by the officers; that, in any\n\nevent, the officers were allowed to pay the fees late; and that the officers had, in\n\nfact, paid the fees. We examine each in turn. Since the omitted facts only relate to\n\nwhether Paez, Peters, and Diaz had the “intent to defraud” or the “intent to obtain\n\nproperty . . . by false or fraudulent . . . representations,” our analysis focuses on\n\nintent.\n\n First, the Appellees say that, pursuant to Article 29 of the Collective\n\nBargaining Agreement (“CBA”) between the Town and the police officer’s union,\n\nthe GBPD expressly agreed to charge administrative fees only to off-duty\n\nemployers, not to the officers themselves. Thus, they say, because Mulvey and\n\n\n\n\n 21\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 22 of 29\n\n\nLoyal had a copy of the CBA, 3 they knew or should have known that the officers\n\nwere not contractually responsible for paying the administrative fees.\n\n We remain unpersuaded. Even with conflicting information about whether\n\nthe officers were responsible for paying the administrative fees, the affiants still\n\ncould reasonably believe that Paez, Peters, and Diaz were required to report their\n\noff-duty work hours and pay the administrative fees. This is so because reliable\n\nsources told them as much. Mulvey and Loyal were informed by the Golden\n\nBeach Finance Director, Maria Camacho, that “GBPD officers who work off-duty\n\ndetails are required to pay an administrative fee.” The Appellees do not dispute\n\nthat Mulvey and Loyal were told this. And the Finance Director’s responsibilities\n\nincluded collecting the fees, so it was perfectly reasonable for the investigating\n\nofficers to credit her account.\n\n The investigating officers did not rely just on this statement, however.\n\nAccording to their affidavits, Mulvey and Loyal also reviewed GBPD spreadsheet\n\nrecords, which catalogued GBPD officers’ off-duty work and the payment of\n\nadministrative fees. Indeed, those spreadsheets contained highly detailed\n\ninformation about the payment of administrative fees, including the amount of fees\n\n\n\n3\n Mulvey and Loyal apparently did have the CBA and did recognize its significance to the\nadministrative fees. At least one of the affidavits recognized that the CBA covered the\nadministrative fees, saying the fees “are required to be paid by all GBPD officers covered by the\nCollective Bargaining Agreement working off-duty details.”\n\n\n 22\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 23 of 29\n\n\nowed and paid, the date of payment, and even the form of payment. These\n\nspreadsheets came from reliable sources. The Golden Beach Finance Director\n\nexplained that the officers themselves were responsible for any missing details in\n\nthe spreadsheets -- “the accuracy of the spreadsheet relies upon the accuracy of the\n\ndocumentation submitted by the off-duty officer and [the Operations Captain].” In\n\nfact, even the Appellees say, in a charge they leveled against the Town of Golden\n\nBeach, that there was an “unwritten policy and practice[] to charge the Golden\n\nBeach police officers . . . [the] administrative fee.” A reasonable investigating\n\nofficer could accept that the CBA said one thing but that the policy and practice\n\nwas quite another.\n\n As we’ve noted, probable cause is a preliminary determination. The\n\ninvestigating officers were not required to resolve legal matters in dispute,\n\nunderstand the nuances of any possible defense, or answer them in order to decide\n\nwhether there was probable cause. Jordan, 487 F.3d at 1356–57. Even if there was\n\nan affirmative defense that the fees were not contractually owed by the officers\n\nthemselves and they therefore received no legal benefit from their conduct, that\n\ndefense does not negate the preliminary determination of probable cause.\n\n In the second place, the Appellees say that -- even if the officers themselves\n\nwere required to pay the administrative fees -- Golden Beach allowed its officers to\n\npay the fees late. As we see it, this fact is irrelevant. The affidavits didn’t claim\n\n\n 23\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 24 of 29\n\n\nthat Paez, Peters, and Diaz had failed to timely remit payments due. Rather, the\n\naffidavits charged the three officers with having taken affirmative steps to conceal\n\nessential facts from their employer (the GBPD) that would have evidenced that\n\nadministrative fees were owed. Paez, Peters, and Diaz offer no explanation for the\n\ndiscrepancies found in the spreadsheets apparently based on their failure to report\n\nessential facts. The spreadsheets were compared with off-duty employer records,\n\nand the comparison revealed repeated instances of unreported or under-reported\n\noff-duty work.\n\n Finally, the Appellees claim that the affidavits omitted any reference to a\n\n2010 sworn statement by the Golden Beach Finance Director indicating that they\n\nhad fully paid -- indeed, had overpaid -- the claimed administrative fees for the off-\n\nduty work that they had reported. The problem again, however, is that the failure\n\nto pay is not the central element of the charged fraud; rather, the failure to report\n\nthe off-duty hours is the critical component. The affidavits asserted that the\n\nspreadsheets maintained by the GBPD and the Town of Golden Beach, at the time\n\nthat they reviewed it, had been “recently updated.” Yet the spreadsheets, when\n\ncompared to records drawn from off-duty employers, revealed numerous instances\n\nof off-duty work being omitted. Thus, for example, the affidavit supporting the\n\narrest warrant for Paez identified some 37 separate dates of off-duty work between\n\nDecember 2008 and September 2009 that were missing from the spreadsheets. The\n\n\n 24\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 25 of 29\n\n\naffidavit supporting the Peters arrest identified 21 such dates between December\n\n2008 and September 2009. And the affidavit providing the basis for the warrant to\n\narrest Diaz, in turn, identified 46 such dates between March 2009 and December\n\n2009. The affidavits also said that Mulvey and Loyal reviewed subpoenaed\n\n“payroll records, off-duty, and on-duty logs” from the GBPD and the Town of\n\nGolden Beach in April 2010. None of the omitted information suggests that the\n\ninvestigating officers’ sources were unreliable or that there weren’t significant\n\ndiscrepancies between the GBPD spreadsheets and off-duty employer records.\n\n Mulvey and Loyal reasonably believed that Paez, Peters, and Diaz\n\ncommitted fraud by their repeated failure to report regardless of the fee-payment\n\nstatus. And even if the affidavits had included a statement saying that in 2010 the\n\nAppellees had paid the “claimed administrative fees” -- the fees for the work they\n\nhad reported -- nothing about the payment status would negate a finding that they\n\nintentionally concealed material information from the Department. The unreported\n\ninformation was relevant, material to any examining official, and it should have\n\nbeen reported. The investigating officers had reason to believe that Paez, Diaz,\n\nand Peters were required to pay administrative fees, and that they were also\n\nrequired to report their off-duty hours to the Golden Beach Police Department. A\n\nprudent person would have believed based on an examination of all the operative\n\nfacts -- what was included and what was omitted -- that the officers had engaged in\n\n\n 25\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 26 of 29\n\n\na scheme to defraud in violation of Florida law. Their arrests were not\n\nunreasonable and did not violate the Fourth Amendment. Since the allegations,\n\ntaken as true, do not establish a violation of the Constitution, Mulvey and Loyal\n\nwere entitled to qualified immunity on each of the § 1983 malicious prosecution\n\nclaims.\n\n Finally, because Mulvey and Loyal committed no constitutional violations,\n\ntheir supervisors, Breeden and Sullivan, cannot be found liable either for violating\n\n§ 1983. The claims against Sergeant Sullivan and Supervisory Agent Breeden are\n\npremised entirely on their supervision of Loyal and Mulvey. But “there can be no\n\nsupervisory liability . . . if there was no underlying constitutional violation.” Gish\n\nv. Thomas, 516 F.3d 952, 955 (11th Cir. 2008); see also Myers v. Bowman, 713\n\nF.3d 1319, 1328 (11th Cir. 2013) (“[A] supervisor may not be held liable under\n\nsection 1983 unless the supervised official committed an underlying violation of a\n\nconstitutional right.”). Since there was no Fourth Amendment violation, much less\n\na clearly established Fourth Amendment violation, Breeden and Sullivan are\n\nentitled to qualified immunity as well.\n\n B.\n\n The Appellees also brought common law malicious prosecution claims\n\nunder Florida law against Mulvey and Loyal, though not against their supervisors.\n\nThe district court again refused to dismiss the claims on the grounds that they are\n\n\n 26\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 27 of 29\n\n\nbarred under Florida law by official immunity, a species of sovereign immunity\n\nthat shields officers from tort liability unless the officer “acted in bad faith or with\n\nmalicious purpose or in a manner exhibiting wanton and willful disregard of\n\nhuman rights, safety, or property.” Fla. Stat. § 768.28(9)(a).\n\n In Florida, the elements of the common law tort of malicious prosecution are\n\nthese:\n\n (1) an original judicial proceeding against the present plaintiff was\n commenced or continued; (2) the present defendant was the legal\n cause of the original proceeding; (3) the termination of the original\n proceeding constituted a bona fide termination of that proceeding in\n favor of the present plaintiff; (4) there was an absence of probable\n cause for the original proceeding; (5) there was malice on the part of\n the present defendant; and (6) the plaintiff suffered damages as a\n result of the original proceeding.\n\nDurkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002).\n\n We have pendent appellate jurisdiction over the district court’s denial of the\n\nmotion to dismiss these state law claims. The denial of qualified immunity as to\n\nthe § 1983 claims falls squarely within our appellate jurisdiction. See Mitchell v.\n\nForsyth, 472 U.S. 511, 530 (1985); see also Howe v. City of Enterprise, 861 F.3d\n\n1300, 1302 (11th Cir. 2017); Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.\n\n2003). We also have pendent appellate jurisdiction over issues that are\n\n“inextricably intertwined” or “inextricably interwoven” with the issue on appeal.\n\nSee United States v. Masino, 869 F.3d 1301, 1305 (11th Cir. 2017); Harris v. Bd.\n\nof Educ. Of Atlanta, 105 F.3d 591, 594 (11th Cir. 1997). Pendent appellate\n 27\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 28 of 29\n\n\njurisdiction is limited and rarely used. See King v. Cessna Aircraft Co., 562 F.3d\n\n1374, 1379–80 (11th Cir. 2009). Issues are not “inextricably intertwined” with the\n\nquestion on appeal when “the appealable issue can be resolved without reaching\n\nthe merits of the nonappealable issues.” In re MDL-1824 Tri-State Water Rights\n\nLitig., 644 F.3d 1160, 1179 (11th Cir. 2011). Here, however, we cannot evaluate\n\nthe denial of qualified immunity on the § 1983 malicious prosecution claims\n\nwithout necessarily evaluating the merits underlying the state law malicious\n\nprosecution claims. Both analyses require us to consider whether the affidavits\n\nsufficiently establish probable cause. Where a finding of probable cause (or\n\narguable probable cause) is a component of a qualified-immunity claim on appeal,\n\na state law claim that also depends on the existence of probable cause is\n\n“inextricably intertwined” for purposes of pendent appellate jurisdiction. See\n\nValderrama v. Rousseau, 780 F.3d 1108, 1111 n.3 (11th Cir. 2015).\n\n We review the district court’s ruling on a motion to dismiss de novo. See\n\nFortner v. Thomas, 983 F.2d 1024, 1027 (11th Cir. 1993). The denial of a motion\n\nto dismiss is proper if the plaintiff’s complaint, taking the facts alleged therein as\n\ntrue, makes out a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.\n\n662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570\n\n(2007)).\n\n\n\n\n 28\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 29 of 29\n\n\n Our Fourth Amendment § 1983 probable cause analysis applies with equal\n\nforce to state common law malicious prosecution claims. The absence of probable\n\ncause is a necessary element of common law malicious prosecution. See Miami-\n\nDade County v. Asad, 78 So. 3d 660, 664 (Fla. 3d DCA 2012). For the same\n\nreasons the complaint has failed to make out a § 1983 malicious prosecution claim,\n\nit also fails to plausibly allege a state common law malicious prosecution claim.\n\nThese claims, too, should have been dismissed.\n\n The long and short of it is that officers Mulvey and Loyal submitted warrant\n\naffidavits supporting a finding of probable cause. Nothing alleged in the\n\nAppellees’ civil rights complaint undermines probable cause and thus, Mulvey and\n\nLoyal, as well as their supervisors Breeden and Sullivan, were entitled to qualified\n\nimmunity on the § 1983 claims. And because there was probable cause to arrest,\n\nthe state law malicious prosecution claims fail as well. The judgment of the\n\ndistrict court is reversed and the cause remanded for further proceedings consistent\n\nwith this opinion.\n\n REVERSED and REMANDED.\n\n\n\n\n 29", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365982/", "author_raw": "MARCUS, Circuit Judge:"}]}	CARNES	MARCUS	ROSS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4588729/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,874		Omar Paez v. Claudia Mulvey	2019-02-08	16-16863	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, ∗ District Judge.", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 16-16863 Date Filed: 02/08/2019 Page: 1 of 29\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-16863\n ________________________\n\n D.C. Docket No. 1:15-cv-20444-JAL\n\n\nOMAR PAEZ,\n\n Plaintiff - Appellee,\n\nYOVANY DIAZ,\nJON ANTERIO,\nLYNDEAN PETERS,\n\n Consolidated Plaintiffs - Appellees,\n\nversus\n\nCLAUDIA MULVEY,\nan individual,\nJOHN LOYAL,\nKELLY SULLIVAN,\nan individual,\nROBERT E. BREEDEN,\nan individual,\n\n Defendants - Appellants,\n\nFLORIDA DEPARTMENT OF LAW ENFORCEMENT, et al.,\n\n Defendants.\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 2 of 29\n\n\n ________________________\n\n Appeals from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (February 8, 2019)\n\nBefore CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, ∗ District\nJudge.\n\nMARCUS, Circuit Judge:\n\n In 2011, Sergeant Omar Paez, Sergeant Lyndean Peters, and Officer Yovany\n\nDiaz (“the Appellees”) of the Golden Beach Police Department were arrested on\n\nvarious charges of public corruption. The officers were accused of, among other\n\nthings, fraudulently failing to report off-duty police work that would have required\n\nthem to pay administrative fees to the Department. The officers were never tried\n\nand the criminal charges were dropped more than three years later. They now say\n\nthe arresting officers, Detective John Loyal of the Miami-Dade Police\n\nDepartment’s (“MDPD”) Public Corruption Investigations Bureau, and Special\n\nAgent Claudia Mulvey of the Florida Department of Law Enforcement (“FDLE”),\n\nas well as Loyal and Mulvey’s supervisors, Sergeant Kelly Sullivan (MDPD) and\n\nSupervisory Agent Robert Breeden (FDLE), violated their constitutional rights by\n\nintentionally omitting exonerating information from the probable cause affidavits\n\n\n\n ∗ The Honorable Eleanor L. Ross, United States District Judge for the Northern District\nof Georgia, sitting by designation.\n 2\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 3 of 29\n\n\nthat secured their arrest warrants. The district court denied Loyal, Mulvey, and\n\ntheir supervisors (“the Appellants”) the protection of qualified immunity. But even\n\nif the omitted information had been included in the affidavits, there would still\n\nhave been probable cause to believe each of the Appellees had engaged in a\n\nscheme to defraud in violation of Florida Statute § 817.034(4). Thus, there was no\n\nconstitutional error in the officers’ arrests pursuant to warrants based on those\n\naffidavits, and Loyal and Mulvey, as well as their supervisors, were entitled to\n\nqualified immunity.\n\n\n I.\n\n A.\n\n Appellees Paez, Peters, and Diaz were police officers in the Golden Beach\n\nPolice Department (“GBPD”) in the late 2000s. MDPD Detective John Loyal and\n\nFDLE Special Agent Claudia Mulvey were assigned to investigate alleged\n\nmisconduct at the GBPD. Loyal and Mulvey jointly submitted probable cause\n\naffidavits to a judge sitting in Florida’s Eleventh Judicial Circuit Court in Miami-\n\nDade County that led to the issuance of arrest warrants for Paez, Peters, and Diaz.\n\nAll three were arrested in early 2011 and subsequently released on bond. The\n\ncriminal charges against them were dropped by the State Attorney’s Office and the\n\ncase was dismissed in March 2014. The issue before us now is whether those\n\n\n\n 3\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 4 of 29\n\n\narrests violated the Fourth Amendment because of exculpatory information left out\n\nof the warrant affidavits.\n\n Each probable cause affidavit outlined two types of allegedly criminal\n\nbehavior. First, because Golden Beach Police Department official time logs and\n\noutside employer time logs for off-duty work showed work performed during the\n\nsame hours, the affiants averred that Paez, Peters, and Diaz were paid for off-duty\n\nwork while simultaneously billing hours for work performed at the GBPD. In\n\naddition, time logs taken from some outside employers revealed off-duty work that\n\nwas not recorded by the GBPD. The Town of Golden Beach (“the Town”)\n\ncollected a five-dollar-per-hour administrative fee for off-duty police work to\n\ncover costs like insurance and the use of police vehicles. Because the invoices\n\nPaez, Peters, and Diaz submitted to the GBPD for off-duty work showed fewer\n\nhours than the time records kept by their off-duty employers, the affiants said that\n\nPaez, Peters, and Diaz had avoided payment of the required administrative costs.\n\n According to the Paez probable cause affidavit, signed by Loyal and\n\nMulvey, Paez had worked 247.5 hours of unrecorded off-duty work, which would\n\nhave required him to pay $1,237.50 in administrative fees to the Town. The\n\naffidavit also identified two occasions on which Paez worked off-duty for private\n\nemployers during the same hours he was said to have worked for the GBPD,\n\nresulting in $212.49 of apparent “double compensation” from the Department. The\n\n\n 4\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 5 of 29\n\n\naffidavit urged that there was probable cause to charge Paez with one count of an\n\nOrganized Scheme to Defraud in violation of Florida Statute § 817.034(4)(a)(3)\n\nand one count of Grand Theft in violation of Florida Statute § 812.014(2)(c).\n\n The Peters affidavit, also signed by Loyal and Mulvey, found that Peters\n\nengaged in 199.5 hours of unrecorded off-duty work, which would have required\n\nhim to pay $997.50 in administrative fees to the Town. The affidavit also\n\nidentified eleven occasions on which Peters worked off-duty for private employers\n\nduring hours he was listed as having worked for the GBPD, resulting in $1,380.12\n\nof apparent “double compensation” from the Department. The affidavit said there\n\nwas probable cause to charge Peters with one count of an Organized Scheme to\n\nDefraud in violation of Florida Statute § 817.034(4)(a)(3), eleven counts of\n\nOfficial Misconduct in violation of Florida Statute § 838.022, one count of Grand\n\nTheft in violation of Florida Statute § 812.014, and one count of False and\n\nFraudulent Insurance Claims in violation of Florida Statute § 817.234. 1\n\n\n\n 1\n This count related only to Peters and was not connected in any way to the other fraud\nand official misconduct charges. The affidavit averred that Peters had committed insurance\nfraud by submitting a $6,100 insurance claim for replacement of a police canine. Sergeant Peters\nhad been rear-ended by a drunk driver and submitted claims to the driver’s insurance company\nfor Peters’ personal injury in the amount of $10,000, and for $10,000 in property damage on\nbehalf of the Town, which included $3,900 in damages to a police vehicle and $6,100 for the\nreplacement of the police canine he said had to be retired due to injuries sustained in the\naccident. The affidavit claimed that, according to veterinary records, the canine had “exhibited\nsome soreness” but had not “sustain[ed] any injuries” in the accident that led to the insurance\nclaim. Instead, the treating veterinarian had previously diagnosed a spinal condition and had\nrecommended restricted duty or retirement for the canine before the car accident.\n\n 5\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 6 of 29\n\n\n Finally, the Diaz affidavit, also signed by Loyal and Mulvey, identified 344\n\nhours of unrecorded off-duty work, which would have required the payment of\n\n$1,720 in administrative fees to the Town. The affidavit also identified five dates\n\non which Diaz worked off-duty for private employers during hours he was listed as\n\nhaving worked for the GBPD, resulting in $312.00 of apparent “double\n\ncompensation” from the Department. The affidavit claimed that there was probable\n\ncause to charge Diaz with one count of an Organized Scheme to Defraud in violation\n\nof Florida Statute § 817.034(4)(a)(3), two counts of Official Misconduct in violation\n\nof Florida Statute § 838.022, and one count of Grand Theft in violation of Florida\n\nStatute § 812.014(2)(c).\n\n B.\n\n After the criminal charges against them were dropped by the State Attorney,\n\nPaez, Peters, and Diaz sued Loyal, Mulvey, Breeden, Sullivan, Miami-Dade\n\nCounty, the FDLE, and the Town of Golden Beach in Florida’s Eleventh Judicial\n\nCircuit.2 The lawsuits were promptly removed to the United States District Court\n\n\n\n\n The civil rights complaint alleged that based on veterinary records and the accident report\navailable to Mulvey and Loyal during their investigation, it was clear the dog had been injured in\nthe accident and that Peters had received no personal monetary benefit from the insurance\npayout. Because we find there was probable cause to believe Peters engaged in an organized\nscheme to defraud, we need not address whether there was probable cause to believe Peters had\nengaged in insurance fraud as well. See infra at 13–14.\n 2\n The district court dismissed the claims against FDLE and Miami-Dade County, and\nPlaintiffs withdrew their claim against the Town. Those claims are not relevant to this appeal.\n 6\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 7 of 29\n\n\nfor the Southern District of Florida, where they were consolidated and transferred\n\nto a single district judge. Each of the Appellees brought six claims relevant to this\n\nappeal: four § 1983 claims alleging that each of the four Appellants violated their\n\nFourth Amendment rights by initiating a malicious prosecution, as well as state\n\ncommon law malicious prosecution claims against Loyal and Sullivan.\n\n In relevant part, the complaint urged that the affidavits submitted by Mulvey\n\nand Loyal should have included additional -- and importantly, exonerating --\n\ninformation known to the affiants. This information, the complaint said, would\n\nhave revealed that their conduct was not criminal. As for the unpaid administrative\n\nfees, the complaint alleged that the GBPD “had no authority” to charge the fees to\n\nthe officers. In addition, the Appellees “had paid, and in fact had actually\n\noverpaid, the claimed administrative fees.” Meanwhile, the claimed incidents of\n\noverlapping on-duty and off-duty work, the complaint further alleged, represented\n\nthe practice of using “flex time” to avoid overtime billing, a practice “well known\n\nto, and condoned by” the GBPD. That is, while the records of hours worked at the\n\nGBPD did not reflect the actual hours worked, the Department allowed its law\n\nenforcement officers to engage in this practice.\n\n The complaint also asserted that Mulvey and Loyal knew that the officers’\n\nconduct was not criminal or improper. It referenced five relevant pieces of omitted\n\nevidence:\n\n\n 7\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 8 of 29\n\n\n [D]uring the investigation, Mulvey and Loyal: (1) were given a copy\n of the [Collective Bargaining Agreement for the GBPD], that clearly\n and by its express terms, did not authorize Golden Beach to charge its\n police officers the administrative fees but only authorized the off-duty\n employers to be charged; (2) secured witness statements from Golden\n Beach Chief Skinner that part-time police officers such as . . . for part\n of the covered period Diaz, were not covered by the CBA and its\n administrative fee policy; (3) chose to ignore undisputed evidence that\n Plaintiffs Paez, Peters, and Diaz had fully paid -- and had even\n overpaid -- the claimed administrative fees; (4) secured a sworn\n statement by Golden Beach Town Manager A. Diaz that Golden\n Beach officers regularly paid the fees late and Golden Beach would\n accept those late payments; [and] (5) were provided with sworn\n statements of [Police Chief] Skinner in 2010 and Golden Beach Police\n Captain Joseph Barasoain (“Barasoain”) in 2011 that discussed the\n “flex time” policy and were thus informed about the “flex time”\n practice as justification for the alleged double reporting of off-duty\n and on-duty work hours . . . .\n\nThe complaint said that since Mulvey and Loyal knew these facts, their affidavits\n\ncontained knowingly false and misleading statements and omitted substantial\n\nexculpatory evidence.\n\n The complaint urged that Mulvey’s supervisor (Breeden) and Loyal’s\n\nsupervisor (Sullivan) also were liable for the misrepresentations made by officers\n\nMulvey and Loyal. Breeden and Sullivan allegedly knew about the exculpatory\n\nevidence and also knew there was no probable cause to believe any crimes had\n\nbeen committed. Yet, they wrongfully approved the arrest warrant affidavits. The\n\ncomplaint added that Breeden and Sullivan were made aware of the contradictory\n\nfacts by Mulvey and Loyal, and from their review of the investigative reports and\n\nall of the evidence and testimony that had been compiled.\n 8\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 9 of 29\n\n\n The Appellants jointly moved the district court to dismiss all of the claims,\n\narguing that there was no wrongful arrest and no malicious prosecution, and thus\n\nthat they were entitled to qualified immunity. The district court granted the motion\n\nin part and denied it in part. It rejected the motion to dismiss the § 1983 malicious\n\nprosecution claims and the state common law malicious prosecution claims leveled\n\nagainst Mulvey and Loyal. The trial court concluded that the complaint plausibly\n\nalleged that Mulvey and Loyal intentionally or recklessly made material omissions\n\nin their probable cause affidavits and that the inclusion of the omitted information\n\nwould have negated any finding of probable cause. Thus, Mulvey and Loyal were\n\nnot entitled to qualified immunity.\n\n As for the § 1983 supervisory liability claims, the district court dismissed\n\nPaez and Diaz’s § 1983 claims against Breeden because Breeden was no longer\n\nMulvey’s supervisor at the time the relevant affidavits were submitted. However,\n\nthe court denied the motion to dismiss all three § 1983 supervisory liability claims\n\nagainst Sullivan and Peters’ § 1983 supervisory liability claim against Breeden;\n\nlike Mulvey and Loyal, the supervisors were not entitled to qualified immunity.\n\n Mulvey, Breeden, Loyal, and Sullivan timely filed this interlocutory appeal.\n\n II.\n\n “We review de novo a district court’s decision to grant or deny the defense\n\nof qualified immunity on a motion to dismiss, accepting the factual allegations in\n\n\n 9\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 10 of 29\n\n\nthe complaint as true and drawing all reasonable inferences in the [nonmoving\n\nparty’s] favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003).\n\n A.\n\n Qualified immunity protects public officers “from undue interference with\n\ntheir duties and from potentially disabling threats of liability.” Harlow v.\n\nFitzgerald, 457 U.S. 800, 806 (1982). It allows government officials to “carry out\n\ntheir discretionary duties without the fear of personal liability or harassing\n\nlitigation.” Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009). “Because\n\nqualified immunity is a defense not only from liability, but also from suit, it is\n\nimportant for a court to ascertain the validity of a qualified immunity defense as\n\nearly in the lawsuit as possible.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.\n\n2002) (quotation omitted).\n\n In order to establish qualified immunity, a defendant first must show that she\n\nwas acting within the scope of her discretionary authority at the time of the alleged\n\nmisconduct. See, e.g., Oliver, 586 F.3d at 905; O’Rourke v. Hayes, 378 F.3d 1201,\n\n1205 (11th Cir. 2004). No one disputes that Mulvey and Loyal were acting within\n\nthe scope of their discretionary authority in investigating corruption in the Golden\n\nBeach Police Department, and in submitting probable cause affidavits, or that\n\nBreeden and Sullivan were acting within the scope of their discretionary authority\n\nin supervising Mulvey and Loyal.\n\n\n 10\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 11 of 29\n\n\n Once a defendant has established that she was acting within her\n\ndiscretionary authority, the burden shifts to the plaintiff to show that qualified\n\nimmunity is not appropriate. Lee, 284 F.3d at 1194. The arresting officer would\n\nbe entitled to qualified immunity unless the plaintiff establishes that “(1) [she]\n\nviolated a federal statutory or constitutional right, and (2) the unlawfulness of [her]\n\nconduct was ‘clearly established at the time.’” Manners v. Cannella, 891 F.3d 959,\n\n968 (11th Cir. 2018) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589\n\n(2018)). These two requirements may be analyzed in any order. See Pearson v.\n\nCallahan, 555 U.S. 223, 236 (2009). The questions, then, boil down to whether\n\nMulvey and Loyal’s conduct violated the Fourth Amendment, and whether it was\n\nclearly established at the time that their conduct did so. Because we conclude that\n\nMulvey and Loyal did not violate any constitutional right, we have no reason to\n\naddress separately the “clearly established” prong.\n\n B.\n\n A constitutional claim brought pursuant to § 1983 must begin with the\n\nidentification of a specific constitutional right that has allegedly been infringed.\n\nAlbright v. Oliver, 510 U.S. 266, 270 (1994). Paez, Peters, and Diaz say that each\n\nof the Appellants violated the Fourth Amendment in pursuing malicious\n\nprosecutions against them. In order “[t]o establish a federal malicious prosecution\n\nclaim under § 1983, a plaintiff must prove (1) the elements of the common law tort\n\n\n 11\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 12 of 29\n\n\nof malicious prosecution, and (2) a violation of her Fourth Amendment right to be\n\nfree of unreasonable seizures.” See, e.g., Kingsland v. City of Miami, 382 F.3d\n\n1220, 1234 (11th Cir. 2004). “[T]he constituent elements of the common law tort\n\nof malicious prosecution include[]: (1) a criminal prosecution instituted or\n\ncontinued by the present defendant; (2) with malice and without probable cause;\n\n(3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the\n\nplaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).\n\n This appeal turns on the second part of the federal malicious prosecution\n\nclaim: whether Paez, Peters, and Diaz were unreasonably seized in violation of the\n\nFourth Amendment. If the conduct alleged did not violate the Fourth Amendment,\n\nthe Appellants would be entitled to qualified immunity and the suit must be\n\ndismissed. A § 1983 malicious prosecution claim includes, though is not limited\n\nto, an unconstitutional arrest. See, e.g., Kingsland, 382 F.3d at 1235; Kjellsen v.\n\nMills, 517 F.3d 1232, 1238 (11th Cir. 2008); Whiting v. Traylor, 85 F.3d 581, 584\n\n(11th Cir. 1996); see also Heck v. Humphrey, 512 U.S. 477, 484 (1994). An arrest\n\nmade without probable cause is an unreasonable seizure. See, e.g., Grider v. City\n\nof Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). The Fourth Amendment\n\nprovides, in pertinent part, that “no Warrants shall issue, but upon probable cause,\n\nsupported by Oath or affirmation,” U.S. Const. amend. IV, and the law requires\n\nthat a warrant for an arrest be supported by “sufficient information to establish\n\n\n 12\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 13 of 29\n\n\nprobable cause,” Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003) (citing\n\nFranks v. Delaware, 438 U.S. 154, 164 (1978)); see also Illinois v. Gates, 462 U.S.\n\n213, 238–39 (1983). Probable cause, in turn, is established “when the facts and\n\ncircumstances within the officer’s knowledge, of which he or she has reasonably\n\ntrustworthy information, would cause a prudent person to believe, under the\n\ncircumstances shown, that the suspect has committed, is committing, or is about to\n\ncommit an offense.” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003)\n\n(emphasis omitted) (quoting McCormick v. City of Fort Lauderdale, 333 F.3d\n\n1234, 1243 (11th Cir. 2003)).\n\n The affidavits alleged that there was probable cause to believe each Appellee\n\nhad committed multiple crimes. At oral argument, all of the parties conceded that\n\nthe existence of probable cause (or even arguable probable cause) as to any one\n\noffense would defeat a § 1983 malicious prosecution claim. Though this issue is\n\nunresolved in our case law pertaining to § 1983 malicious prosecution claims, we\n\nhave said that arguable probable cause as to any one offense is sufficient to defeat\n\n§ 1983 claims for other Fourth Amendment violations, including false arrest and\n\nunlawful searches. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.\n\n1997) (finding officer entitled to qualified immunity when a misstatement in a\n\nsearch warrant vitiated arguable probable cause as to one offense, but the\n\nmisstatement was “not relevant to the existence of probable cause to believe that . .\n\n\n 13\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 14 of 29\n\n\n. other . . . crimes had been committed”); Bailey v. Bd. of Cty. Comm’rs of\n\nAlachua Cty., 956 F.2d 1112, 1119 n.4 (11th Cir. 1992) (“The validity of an arrest\n\ndoes not turn on the offense announced by the officer at the time of the arrest.”).\n\nBased on the parties’ concessions, we need not resolve the question as it relates to\n\nmalicious prosecution. Rather, we assume arguendo that a finding of probable\n\ncause (or arguable probable cause) as to one offense announced in the affidavit\n\nwould defeat the Appellees’ § 1983 malicious prosecution claims.\n\n Probable cause “‘requires only a probability or substantial chance of\n\ncriminal activity, not an actual showing of such activity.’ Probable cause ‘is not a\n\nhigh bar.’” Wesby, 138 S. Ct. at 586 (first quoting Gates, 462 U.S. at 243–44 n.13;\n\nthen quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014)). Far from\n\n“‘requir[ing] convincing proof’ that [an] offense was committed,” probable cause\n\nis a flexible and fluid concept, that looks instead to the totality of the circumstances\n\nto determine the reasonableness of the officer’s belief that a crime has been\n\ncommitted. Manners, 891 F.3d at 968 (quoting Bailey, 956 F.2d at 1120).\n\nAccordingly, “[t]he test for probable cause is not reducible to ‘precise definition or\n\nquantification,’” and “[f]inely tuned standards such as proof beyond a reasonable\n\ndoubt or by a preponderance of the evidence . . . have no place in the [probable-\n\ncause] decision.’” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (first quoting\n\n\n\n\n 14\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 15 of 29\n\n\nMaryland v. Pringle, 540 U.S. 366, 371 (2003); then quoting Gates, 462 U.S. at\n\n235).\n\n Importantly, as we noted in Manners, an affirmative defense to an alleged\n\ncrime does not necessarily vitiate probable cause. Manners, 891 F.3d at 971–72.\n\nIndeed, “arresting officers, in deciding whether probable cause exists, are not\n\nrequired to sift through conflicting evidence or resolve issues of credibility, so long\n\nas the totality of the circumstances present a sufficient basis for believing that an\n\noffense has been committed.” Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.\n\n2002), abrogated on other grounds by Lozman v. City of Riviera Beach, 138 S. Ct.\n\n1945 (2018). This is so, in part, because probable cause is a preliminary\n\ndetermination made initially in an ex parte proceeding. Again, it does not require\n\nanything close to conclusive proof or proof beyond a reasonable doubt that a crime\n\nwas in fact committed, or even a finding made by a preponderance of the evidence.\n\nSee Manners, 891 F.3d at 968. A law enforcement officer is not required to\n\nresolve every inconsistency found in the evidence. Moreover, police officers\n\naren’t lawyers; we do not expect them to resolve legal questions or to weigh the\n\nviability of most affirmative defenses. See Williams v. City of Albany, 936 F.2d\n\n1256, 1260 (11th Cir. 1991) (“Whether the statute of limitations bars a prosecution\n\nis a question of law. The officers properly deferred legal decisions to the district\n\nattorney.”). So long as it is reasonable to conclude from the body of evidence as a\n\n\n 15\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 16 of 29\n\n\nwhole that a crime was committed, the presence of some conflicting evidence or a\n\npossible defense will not vitiate a finding of probable cause. The touchstone\n\nremains the reasonableness of the officer’s conduct.\n\n It is also true that officers may not lie about or conceal critical information.\n\nThe Supreme Court has held that the Fourth Amendment demands a warrant\n\naffiant provide information with a reasonable belief in its veracity:\n\n [W]hen the Fourth Amendment demands a factual showing sufficient\n to comprise ‘probable cause,’ the obvious assumption is that there will\n be a truthful showing. . . . This does not mean “truthful” in the sense\n that every fact recited in the warrant affidavit is necessarily correct . . .\n [but] surely it is to be “truthful” in the sense that the information put\n forth is believed or appropriately accepted by the affiant as true.\n\nFranks, 438 U.S. at 165–66. Intentional or reckless material misstatements or\n\nomissions in a warrant affidavit thus could violate the Fourth Amendment. Kelly\n\nv. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994). Negligent misstatements or\n\nomissions, on the other hand, do not. Id.\n\n We have employed a two-part test to determine whether a misstatement in\n\nan officer’s warrant affidavit amounts to a violation of the Fourth Amendment.\n\nFirst, we ask whether there was an intentional or reckless misstatement or\n\nomission. Then, we examine the materiality of the information by inquiring\n\nwhether probable cause would be negated if the offending statement was removed\n\nor the omitted information included. See United States v. Kirk, 781 F.2d 1498,\n\n1502 (11th Cir. 1986) (“[W]e must consider: (1) whether the alleged misstatements\n 16\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 17 of 29\n\n\nin the affidavit were made either intentionally or in reckless disregard for the truth,\n\nand, if so, (2) whether, after deleting the misstatements, the affidavit is insufficient\n\nto establish probable cause.” (citing Franks, 438 U.S. 154)); see also Madiwale,\n\n117 F.3d at 1326–27 (“[A] warrant affidavit violates the Fourth Amendment when\n\nit contains omissions made intentionally or with a reckless disregard for the\n\naccuracy of the affidavit . . . if inclusion of the omitted facts would have prevented\n\na finding of probable cause.” (internal citation and quotation omitted)); Stewart v.\n\nDonges, 915 F.2d 572, 582 n.13 (10th Cir. 1990) (“Whether the omitted statement\n\nwas material is determined by examining the affidavit as if the omitted information\n\nhad been included and inquiring if the affidavit would still have given rise to\n\nprobable cause for the warrant.”).\n\n Three basic rules, then, guide our consideration today: (1) a warrant for\n\narrest must establish probable cause for an offense; (2) a warrant affidavit must\n\ncontain truthful statements that do support probable cause; and (3) an affidavit’s\n\nomissions may lead to an unreasonable and unconstitutional warrant-based arrest if\n\ninformation that the affiant knew about but intentionally or recklessly disregarded\n\nnegates a finding of probable cause. Because at this stage in the proceedings we\n\nmust accept the facts as alleged in the complaint as true, we take as true that the\n\nexculpatory information was known to Loyal and Mulvey and their omission was\n\nmade either intentionally or in reckless disregard of the truth. Our only question,\n\n\n 17\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 18 of 29\n\n\nthen, is whether the affidavits still would have established probable cause to\n\nbelieve the officers had violated Florida Statute § 817.034(4), if they had included\n\nthe omitted information that they knew about. If so, Mulvey and Loyal did not\n\nviolate the Fourth Amendment, nor did their supervisors, and each of them would\n\nbe entitled to qualified immunity.\n\n Paez, Peters, and Diaz face a difficult road in perfecting their § 1983 claims.\n\nAs the Supreme Court has explained in a similar context, “the . . . standard of\n\nobjective reasonableness . . . defines the qualified immunity accorded an officer\n\nwhose request for a warrant allegedly caused an unconstitutional arrest. Only\n\nwhere the warrant application is so lacking in indicia of probable cause as to render\n\nofficial belief in its existence unreasonable will the shield of immunity be lost.”\n\nMalley v. Briggs, 475 U.S. 335, 344–45 (1986) (citation omitted); see also id. at\n\n341 (“Defendants will not be immune if, on an objective basis, it is obvious that no\n\nreasonably competent officer would have concluded that a warrant should issue;\n\nbut if officers of reasonable competence could disagree on this issue, immunity\n\nshould be recognized.”). Put another way, if the affidavits (including the omitted\n\ninformation) would have demonstrated even arguable probable cause -- that a\n\nreasonable officer could have believed an offense was committed -- then the\n\nofficers are entitled to qualified immunity. See, e.g., Grider, 618 F.3d at 1257.\n\n\n\n\n 18\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 19 of 29\n\n\nHere, we find that the affidavits would have established not just arguable probable\n\ncause, but probable cause itself.\n\n III.\n\n A.\n\n We consider the § 1983 malicious prosecution claims against Mulvey and\n\nLoyal together because the § 1983 claims levelled against Mulvey and Loyal are\n\nessentially the same. Both Mulvey and Loyal swore and signed each of the\n\naffidavits. Loyal was referred to as the “Affiant” and Mulvey as the “Co-Affiant.”\n\nThe complaint alleges that Mulvey and Loyal conducted the investigation together\n\nand that each knew about the relevant information that the Appellees claim was\n\nomitted. In addition, although Mulvey and Loyal are represented by different\n\ncounsel on appeal, each has adopted the arguments of the other.\n\n After reviewing all of the relevant information -- what was included and\n\nwhat was omitted -- there still was probable cause to believe Paez, Peters, and Diaz\n\nhad engaged in an organized scheme to defraud in violation of Florida’s criminal\n\nlaw, and that, therefore, there was no violation of the Fourth Amendment. Reliable\n\ninformation described in the affidavits still would have led a reasonable officer to\n\nbelieve that Paez, Peters, and Diaz intentionally failed to report off-duty work\n\nhours that would have required them to pay administrative fees. The omissions do\n\nnot undercut the reasonableness of the belief. Among other things, the affidavits\n\n\n 19\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 20 of 29\n\n\nasserted probable cause to charge each of the three law enforcement officers with\n\nengaging in an organized scheme to defraud in violation of the Florida\n\nCommunications Fraud Act, Florida Statute § 817.034. The relevant provision of\n\nFlorida’s penal code makes it a crime to “engage[] in a scheme to defraud and\n\nobtain[] property thereby.” Fla. Stat. § 817.034(4)(a). “Property” is defined as\n\n“anything of value.” Fla. Stat. § 817.034(3)(c). A “scheme to defraud” is “a\n\nsystematic, ongoing course of conduct with intent to defraud one or more persons,\n\nor with intent to obtain property from one or more persons by false or fraudulent\n\npretenses, representations, or promises or willful misrepresentations of a future\n\nact.” Fla. Stat. § 817.034(3)(d). To “defraud” means to “cause injury or loss to (a\n\nperson or organization) by deceit; to trick (a person or organization) in order to get\n\nmoney.” Defraud, Black’s Law Dictionary 516 (10th ed. 2014) (internal\n\npunctuation omitted).\n\n Although there are countless ways to engage in a scheme to defraud --\n\nindeed the concept is as wide as the imagination of man -- the conduct here would\n\nfit the basic statutory definitions. Having repeatedly and deceptively failed to\n\nreport off-duty work hours and having thereby deprived the Town of fees to which\n\nit was rightfully entitled, the Appellees appeared to have engaged in a “systematic,\n\nongoing course of conduct with intent to defraud.” Fla. Stat. § 817.034(3).\n\nProbable cause, then, comes down to this: since Paez, Peters, and Diaz repeatedly\n\n\n 20\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 21 of 29\n\n\nwithheld relevant information about off-duty work in order to avoid payment of\n\nfees, there was sound reason to believe each had engaged in an organized scheme\n\nto defraud. The affidavits themselves set out sufficient facts drawn from more than\n\none reliable source that would lead a reasonable officer to believe the Appellees\n\nrepeatedly withheld information in order to avoid paying fees. The claimed\n\nomissions do not undermine the reasonableness of the affidavits.\n\n The civil rights complaint references three pieces of omitted information:\n\nthat the administrative fees were not legally owed by the officers; that, in any\n\nevent, the officers were allowed to pay the fees late; and that the officers had, in\n\nfact, paid the fees. We examine each in turn. Since the omitted facts only relate to\n\nwhether Paez, Peters, and Diaz had the “intent to defraud” or the “intent to obtain\n\nproperty . . . by false or fraudulent . . . representations,” our analysis focuses on\n\nintent.\n\n First, the Appellees say that, pursuant to Article 29 of the Collective\n\nBargaining Agreement (“CBA”) between the Town and the police officer’s union,\n\nthe GBPD expressly agreed to charge administrative fees only to off-duty\n\nemployers, not to the officers themselves. Thus, they say, because Mulvey and\n\n\n\n\n 21\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 22 of 29\n\n\nLoyal had a copy of the CBA, 3 they knew or should have known that the officers\n\nwere not contractually responsible for paying the administrative fees.\n\n We remain unpersuaded. Even with conflicting information about whether\n\nthe officers were responsible for paying the administrative fees, the affiants still\n\ncould reasonably believe that Paez, Peters, and Diaz were required to report their\n\noff-duty work hours and pay the administrative fees. This is so because reliable\n\nsources told them as much. Mulvey and Loyal were informed by the Golden\n\nBeach Finance Director, Maria Camacho, that “GBPD officers who work off-duty\n\ndetails are required to pay an administrative fee.” The Appellees do not dispute\n\nthat Mulvey and Loyal were told this. And the Finance Director’s responsibilities\n\nincluded collecting the fees, so it was perfectly reasonable for the investigating\n\nofficers to credit her account.\n\n The investigating officers did not rely just on this statement, however.\n\nAccording to their affidavits, Mulvey and Loyal also reviewed GBPD spreadsheet\n\nrecords, which catalogued GBPD officers’ off-duty work and the payment of\n\nadministrative fees. Indeed, those spreadsheets contained highly detailed\n\ninformation about the payment of administrative fees, including the amount of fees\n\n\n\n3\n Mulvey and Loyal apparently did have the CBA and did recognize its significance to the\nadministrative fees. At least one of the affidavits recognized that the CBA covered the\nadministrative fees, saying the fees “are required to be paid by all GBPD officers covered by the\nCollective Bargaining Agreement working off-duty details.”\n\n\n 22\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 23 of 29\n\n\nowed and paid, the date of payment, and even the form of payment. These\n\nspreadsheets came from reliable sources. The Golden Beach Finance Director\n\nexplained that the officers themselves were responsible for any missing details in\n\nthe spreadsheets -- “the accuracy of the spreadsheet relies upon the accuracy of the\n\ndocumentation submitted by the off-duty officer and [the Operations Captain].” In\n\nfact, even the Appellees say, in a charge they leveled against the Town of Golden\n\nBeach, that there was an “unwritten policy and practice[] to charge the Golden\n\nBeach police officers . . . [the] administrative fee.” A reasonable investigating\n\nofficer could accept that the CBA said one thing but that the policy and practice\n\nwas quite another.\n\n As we’ve noted, probable cause is a preliminary determination. The\n\ninvestigating officers were not required to resolve legal matters in dispute,\n\nunderstand the nuances of any possible defense, or answer them in order to decide\n\nwhether there was probable cause. Jordan, 487 F.3d at 1356–57. Even if there was\n\nan affirmative defense that the fees were not contractually owed by the officers\n\nthemselves and they therefore received no legal benefit from their conduct, that\n\ndefense does not negate the preliminary determination of probable cause.\n\n In the second place, the Appellees say that -- even if the officers themselves\n\nwere required to pay the administrative fees -- Golden Beach allowed its officers to\n\npay the fees late. As we see it, this fact is irrelevant. The affidavits didn’t claim\n\n\n 23\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 24 of 29\n\n\nthat Paez, Peters, and Diaz had failed to timely remit payments due. Rather, the\n\naffidavits charged the three officers with having taken affirmative steps to conceal\n\nessential facts from their employer (the GBPD) that would have evidenced that\n\nadministrative fees were owed. Paez, Peters, and Diaz offer no explanation for the\n\ndiscrepancies found in the spreadsheets apparently based on their failure to report\n\nessential facts. The spreadsheets were compared with off-duty employer records,\n\nand the comparison revealed repeated instances of unreported or under-reported\n\noff-duty work.\n\n Finally, the Appellees claim that the affidavits omitted any reference to a\n\n2010 sworn statement by the Golden Beach Finance Director indicating that they\n\nhad fully paid -- indeed, had overpaid -- the claimed administrative fees for the off-\n\nduty work that they had reported. The problem again, however, is that the failure\n\nto pay is not the central element of the charged fraud; rather, the failure to report\n\nthe off-duty hours is the critical component. The affidavits asserted that the\n\nspreadsheets maintained by the GBPD and the Town of Golden Beach, at the time\n\nthat they reviewed it, had been “recently updated.” Yet the spreadsheets, when\n\ncompared to records drawn from off-duty employers, revealed numerous instances\n\nof off-duty work being omitted. Thus, for example, the affidavit supporting the\n\narrest warrant for Paez identified some 37 separate dates of off-duty work between\n\nDecember 2008 and September 2009 that were missing from the spreadsheets. The\n\n\n 24\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 25 of 29\n\n\naffidavit supporting the Peters arrest identified 21 such dates between December\n\n2008 and September 2009. And the affidavit providing the basis for the warrant to\n\narrest Diaz, in turn, identified 46 such dates between March 2009 and December\n\n2009. The affidavits also said that Mulvey and Loyal reviewed subpoenaed\n\n“payroll records, off-duty, and on-duty logs” from the GBPD and the Town of\n\nGolden Beach in April 2010. None of the omitted information suggests that the\n\ninvestigating officers’ sources were unreliable or that there weren’t significant\n\ndiscrepancies between the GBPD spreadsheets and off-duty employer records.\n\n Mulvey and Loyal reasonably believed that Paez, Peters, and Diaz\n\ncommitted fraud by their repeated failure to report regardless of the fee-payment\n\nstatus. And even if the affidavits had included a statement saying that in 2010 the\n\nAppellees had paid the “claimed administrative fees” -- the fees for the work they\n\nhad reported -- nothing about the payment status would negate a finding that they\n\nintentionally concealed material information from the Department. The unreported\n\ninformation was relevant, material to any examining official, and it should have\n\nbeen reported. The investigating officers had reason to believe that Paez, Diaz,\n\nand Peters were required to pay administrative fees, and that they were also\n\nrequired to report their off-duty hours to the Golden Beach Police Department. A\n\nprudent person would have believed based on an examination of all the operative\n\nfacts -- what was included and what was omitted -- that the officers had engaged in\n\n\n 25\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 26 of 29\n\n\na scheme to defraud in violation of Florida law. Their arrests were not\n\nunreasonable and did not violate the Fourth Amendment. Since the allegations,\n\ntaken as true, do not establish a violation of the Constitution, Mulvey and Loyal\n\nwere entitled to qualified immunity on each of the § 1983 malicious prosecution\n\nclaims.\n\n Finally, because Mulvey and Loyal committed no constitutional violations,\n\ntheir supervisors, Breeden and Sullivan, cannot be found liable either for violating\n\n§ 1983. The claims against Sergeant Sullivan and Supervisory Agent Breeden are\n\npremised entirely on their supervision of Loyal and Mulvey. But “there can be no\n\nsupervisory liability . . . if there was no underlying constitutional violation.” Gish\n\nv. Thomas, 516 F.3d 952, 955 (11th Cir. 2008); see also Myers v. Bowman, 713\n\nF.3d 1319, 1328 (11th Cir. 2013) (“[A] supervisor may not be held liable under\n\nsection 1983 unless the supervised official committed an underlying violation of a\n\nconstitutional right.”). Since there was no Fourth Amendment violation, much less\n\na clearly established Fourth Amendment violation, Breeden and Sullivan are\n\nentitled to qualified immunity as well.\n\n B.\n\n The Appellees also brought common law malicious prosecution claims\n\nunder Florida law against Mulvey and Loyal, though not against their supervisors.\n\nThe district court again refused to dismiss the claims on the grounds that they are\n\n\n 26\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 27 of 29\n\n\nbarred under Florida law by official immunity, a species of sovereign immunity\n\nthat shields officers from tort liability unless the officer “acted in bad faith or with\n\nmalicious purpose or in a manner exhibiting wanton and willful disregard of\n\nhuman rights, safety, or property.” Fla. Stat. § 768.28(9)(a).\n\n In Florida, the elements of the common law tort of malicious prosecution are\n\nthese:\n\n (1) an original judicial proceeding against the present plaintiff was\n commenced or continued; (2) the present defendant was the legal\n cause of the original proceeding; (3) the termination of the original\n proceeding constituted a bona fide termination of that proceeding in\n favor of the present plaintiff; (4) there was an absence of probable\n cause for the original proceeding; (5) there was malice on the part of\n the present defendant; and (6) the plaintiff suffered damages as a\n result of the original proceeding.\n\nDurkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002).\n\n We have pendent appellate jurisdiction over the district court’s denial of the\n\nmotion to dismiss these state law claims. The denial of qualified immunity as to\n\nthe § 1983 claims falls squarely within our appellate jurisdiction. See Mitchell v.\n\nForsyth, 472 U.S. 511, 530 (1985); see also Howe v. City of Enterprise, 861 F.3d\n\n1300, 1302 (11th Cir. 2017); Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir.\n\n2003). We also have pendent appellate jurisdiction over issues that are\n\n“inextricably intertwined” or “inextricably interwoven” with the issue on appeal.\n\nSee United States v. Masino, 869 F.3d 1301, 1305 (11th Cir. 2017); Harris v. Bd.\n\nof Educ. Of Atlanta, 105 F.3d 591, 594 (11th Cir. 1997). Pendent appellate\n 27\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 28 of 29\n\n\njurisdiction is limited and rarely used. See King v. Cessna Aircraft Co., 562 F.3d\n\n1374, 1379–80 (11th Cir. 2009). Issues are not “inextricably intertwined” with the\n\nquestion on appeal when “the appealable issue can be resolved without reaching\n\nthe merits of the nonappealable issues.” In re MDL-1824 Tri-State Water Rights\n\nLitig., 644 F.3d 1160, 1179 (11th Cir. 2011). Here, however, we cannot evaluate\n\nthe denial of qualified immunity on the § 1983 malicious prosecution claims\n\nwithout necessarily evaluating the merits underlying the state law malicious\n\nprosecution claims. Both analyses require us to consider whether the affidavits\n\nsufficiently establish probable cause. Where a finding of probable cause (or\n\narguable probable cause) is a component of a qualified-immunity claim on appeal,\n\na state law claim that also depends on the existence of probable cause is\n\n“inextricably intertwined” for purposes of pendent appellate jurisdiction. See\n\nValderrama v. Rousseau, 780 F.3d 1108, 1111 n.3 (11th Cir. 2015).\n\n We review the district court’s ruling on a motion to dismiss de novo. See\n\nFortner v. Thomas, 983 F.2d 1024, 1027 (11th Cir. 1993). The denial of a motion\n\nto dismiss is proper if the plaintiff’s complaint, taking the facts alleged therein as\n\ntrue, makes out a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.\n\n662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570\n\n(2007)).\n\n\n\n\n 28\n\f Case: 16-16863 Date Filed: 02/08/2019 Page: 29 of 29\n\n\n Our Fourth Amendment § 1983 probable cause analysis applies with equal\n\nforce to state common law malicious prosecution claims. The absence of probable\n\ncause is a necessary element of common law malicious prosecution. See Miami-\n\nDade County v. Asad, 78 So. 3d 660, 664 (Fla. 3d DCA 2012). For the same\n\nreasons the complaint has failed to make out a § 1983 malicious prosecution claim,\n\nit also fails to plausibly allege a state common law malicious prosecution claim.\n\nThese claims, too, should have been dismissed.\n\n The long and short of it is that officers Mulvey and Loyal submitted warrant\n\naffidavits supporting a finding of probable cause. Nothing alleged in the\n\nAppellees’ civil rights complaint undermines probable cause and thus, Mulvey and\n\nLoyal, as well as their supervisors Breeden and Sullivan, were entitled to qualified\n\nimmunity on the § 1983 claims. And because there was probable cause to arrest,\n\nthe state law malicious prosecution claims fail as well. The judgment of the\n\ndistrict court is reversed and the cause remanded for further proceedings consistent\n\nwith this opinion.\n\n REVERSED and REMANDED.\n\n\n\n\n 29", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367127/", "author_raw": "MARCUS, Circuit Judge:"}]}	CARNES	MARCUS	ROSS	1	{"CARNES": ", Chief", "MARCUS": ", Circuit", "ROSS": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589874/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,352	Anthony S. PITCH, Plaintiff - Appellee, v. UNITED STATES of America, Defendant - Appellant.	Anthony S. Pitch v. United States	2019-02-11	17-15016	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Wilson, Jordan, Graham", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887985/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887986/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887987/", "author_raw": ""}, {"author": "WILSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-15016 Date Filed: 02/11/2019 Page: 1 of 27\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15016\n ________________________\n\n D.C. Docket No. 5:14-mc-00002-MTT\n\n\n\nANTHONY S. PITCH,\n\n Plaintiff - Appellee,\n\nversus\n\nUNITED STATES OF AMERICA,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Georgia\n ________________________\n\n (February 11, 2019)\n\nBefore WILSON and JORDAN, Circuit Judges, and GRAHAM, * District Judge.\n\nWILSON, Circuit Judge:\n\n\n\n Honorable James L. Graham, United States District Judge for the Southern District of Ohio,\nsitting by designation.\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 2 of 27\n\n\n In 1946, a crowd of people in Walton County, Georgia gathered as two\n\nAfrican American couples were dragged from a car and shot multiple times. 1\n\nMany consider this event, known as the Moore’s Ford Lynching, to be the last\n\nmass lynching in American history. Racial tensions in Georgia were high. African\n\nAmerican citizens were allowed to vote in a Georgia Democratic Party primary for\n\nthe first time that year. 2 The murders occurred shortly after the primary and\n\nimmediately garnered national media attention. National outrage, including\n\ncondemnation from then Special Counsel to the NAACP Thurgood Marshall,\n\nultimately led President Harry Truman to order an FBI investigation. In late 1946,\n\na district court judge in Georgia convened a grand jury. But after sixteen days of\n\nwitness testimony, no one was ever charged. The case remains unsolved.\n\n Over seven decades later, Anthony Pitch, an author and historian, petitioned\n\nthe Middle District of Georgia for an order unsealing the grand jury transcripts.\n\nThe district court granted his request. The government now appeals, arguing the\n\ndistrict court abused its discretion in unsealing the transcripts. After careful review\n\nand with the benefit of oral argument, we affirm.\n\n\n\n\n1\n There are differing accounts on the number of shots and the number of people present.\nEstimates suggest that between thirty and one hundred people were present.\n2\n The Fifth Circuit had recently held that the Georgia Democratic Party’s all-white primary\nsystem was unconstitutional. Chapman v. King, 154 F.2d 460 (5th Cir. 1946), cert. denied, 327\nU.S. 800, 66 S. Ct. 905 (1946).\n 2\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 3 of 27\n\n\n I. Factual and Procedural Background\n\n Anthony Pitch wrote a book about the Moore’s Ford Lynching. In 2014,\n\nwhile researching the event for the book, Pitch petitioned the Middle District of\n\nGeorgia to unseal the federal grand jury records related to the incident. Initially,\n\nthe district court denied the petition without prejudice because Pitch did not\n\npresent evidence that the records even existed. Three years later, Pitch renewed his\n\npetition, arguing that his investigation revealed that the records were at the\n\nNational Archives in Washington, D.C. The district court ordered the government\n\nto produce the records for in camera inspection. The government filed the\n\ntranscripts under seal. And against the objections of the government, the district\n\ncourt ordered the transcripts be unsealed. To do so, the district court relied on its\n\ninherent authority under In re Petition to Inspect & Copy Grand Jury Materials\n\n(Hastings), 735 F.2d 1261 (11th Cir. 1984).\n\n On appeal, the government argues first, that the district court lacked inherent\n\nauthority to disclose the transcripts, and second, even assuming the district court\n\nhad inherent authority, the court exceeded that authority by permitting disclosure\n\nbased solely on the historical significance of the Moore’s Ford Lynching. Because\n\nwe are bound by our decision in Hastings, we affirm. See Kondrat’yev v. City of\n\nPensacola, Fla., 903 F.3d 1169, 1174 (11th Cir. 2018) (per curiam) (“[O]ur\n\nprecedent—in particular, our precedent about precedent—is clear: ‘[W]e are not at\n\n\n 3\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 4 of 27\n\n\nliberty to disregard binding case law that is . . . closely on point and has been only\n\nweakened, rather than directly overruled, by the Supreme Court.’” (quoting Fla.\n\nLeague of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996))).\n\n II. Power of District Courts to Disclose Grand Jury Records\n\n The government argues that the district court erred in invoking its inherent\n\nauthority to disclose the grand jury records. We review a district court’s disclosure\n\nof grand jury transcripts for abuse of discretion. United States v. Aisenberg, 358\n\nF.3d 1327, 1338 (11th Cir. 2004). A court abuses its discretion when it commits\n\nan error of law. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).\n\n A. Statutory Authority to Disclose Grand Jury Records\n\n Grand jury secrecy is “an integral part of our criminal justice system.”\n\nBlalock v. United States, 844 F.2d 1546, 1555 (11th Cir. 1988) (per curiam). Even\n\nafter an investigation has ended, grand jury proceedings generally remain secret.\n\n“The grand jury as a public institution serving the community might suffer if those\n\ntestifying today knew that the secrecy of their testimony would be lifted\n\ntomorrow.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct.\n\n983, 986 (1958). Federal Rule of Criminal Procedure 6(e) codifies the general rule\n\nprohibiting the disclosure of grand jury records. Rule 6(e) requires that “[r]ecords,\n\norders, and subpoenas relating to grand-jury proceedings . . . be kept under seal . . .\n\n\n\n\n 4\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 5 of 27\n\n\nto prevent the unauthorized disclosure of a matter occurring before a grand jury.”\n\nFED. R. CRIM. P. 6(e)(6).\n\n Rule 6(e) also codifies a list of exceptions to its general rule of secrecy. The\n\nonly enumerated exception available to a party other than the government or a\n\nparty in the grand jury proceeding is Rule 6(e)(3)(E)(i), which allows a court to\n\nauthorize disclosure of grand jury records “preliminarily to or in connection with a\n\njudicial proceeding.” A party invoking this exception must prove that “the\n\nmaterial they seek is needed to avoid a possible injustice in another court\n\nproceeding, that the need for disclosure is greater than the need for continued\n\nsecrecy, and that their request is structured to cover only material so needed.”\n\nDouglas Oil Co. of Ca. v. Petrol Stops NW, 441 U.S. 211, 222, 99 S. Ct. 1667,\n\n1674 (1979). Pitch agrees that he cannot benefit from this exception because the\n\ngrand jury records he sought were not necessary in “another court proceeding.”\n\n B. Inherent Authority to Disclose Grand Jury Records\n\n We have recognized that district courts retain “inherent power beyond the\n\nliteral wording of Rule 6(e)” to disclose grand jury material not otherwise covered\n\nby the exceptions. Hastings, 735 F.2d at 1268.3 “[T]he exceptions permitting\n\n\n3\n The government argues that we are no longer bound by Hastings because the Supreme Court\nhas rejected its reasoning. In Carlisle v. United States, the Supreme Court held that “[w]hatever\nthe scope of [a court’s] ‘inherent power,’ . . . it does not include the power to develop rules that\ncircumvent or conflict with the Federal Rules of Civil Procedure.” 517 U.S. 416, 426, 116 S. Ct.\n1460, 1466 (1996) (emphasis added). This passage must be read in context. Carlisle held that a\ndistrict court cannot directly contradict an applicable and unambiguous Federal Rule of Criminal\n 5\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 6 of 27\n\n\ndisclosure were not intended to ossify the law, but rather are subject to\n\ndevelopment by the courts in conformance with the Rule’s general rule of\n\nsecrecy.” Id. at 1269; accord United States v. Aisenberg, 358 F.3d 1327, 1347\n\n(11th Cir. 2004) (“Although Rule 6(e)(3) enumerates the exceptions to the\n\ntraditional rule of grand jury secrecy, the Supreme Court and this Court have\n\nrecognized that the district courts have inherent power beyond the literal wording\n\nof Rule 6(e)(3) to disclose grand jury material and that Rule 6(e)(3) is but\n\ndeclaratory of that authority.”); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997)\n\n(“[P]ermitting departures from Rule 6(e) is fully consonant with the role of the\n\nsupervising court and will not unravel the foundations of secrecy upon which the\n\ngrand jury is premised.”); Carlson v. United States, 837 F.3d 753, 763 (7th Cir.\n\n2016) (“Rule 6(e) is but declaratory of the long-standing principle that disclosure\n\nof grand jury materials is committed to the discretion of the trial court.”) (internal\n\nquotation marks omitted).\n\n\n\nProcedure by invoking its inherent authority. In Carlisle, the Supreme Court held that a district\ncourt could not rely on inherent authority to enter a judgment of acquittal after the seven-day\ntime limit prescribed by Rule 29(c) had expired. Id. at 426. The district court there\n“contradicted the plain language” of the Rule by “effectively annul[ing]” the seven-day time\nlimit prescribed by Congress. Id. We do not read Carlisle to prohibit the exercise of that\nauthority in “exceptional circumstances consonant with the rule’s policy and spirit.” Hastings,\n735 F.2d at 1269; cf. United States v. Aisenberg, 358 F.3d 1327 (11th Cir. 2004) (holding that a\npetitioner cannot circumvent the plain text of an applicable rule or the Douglas Oil test by\nasserting inherent authority). “[W]e are not at liberty to disregard binding case law that is . . .\nclosely on point and has been only weakened, rather than directly overruled, by the Supreme\nCourt.” Kondrat’yev, 903 F.3d at 1174 (internal quotation marks omitted). We are thus bound\nby Hastings.\n 6\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 7 of 27\n\n\n “This is not to say [Rule 6(e)] is not normally controlling. It is.” Hastings,\n\n735 F.2d at 1268. Petitioners and district courts cannot rely on inherent authority\n\nto circumvent a plainly applicable and unambiguous enumerated Rule 6(e)\n\nexception. See Aisenberg, 358 F.3d 1327 (declining to allow petitioners to rely on\n\ninherent authority because petitioners’ request was “preliminarily to or in\n\nconnection with a judicial proceeding” under the Rule 6(e)(3)(E)(i) exception); cf.\n\nCarlisle v. United States, 517 U.S. 416, 426 (1996) (holding that a district court\n\ncould not use inherent authority to extend a plain and unambiguous Rule of\n\nCriminal Procedure that limited district court’s authority to enter a judgment of\n\nacquittal to seven days). The upshot, then, is a district court may only invoke its\n\ninherent authority to disclose grand jury records when an enumerated Rule 6(e)\n\nexception does not directly govern the requested disclosure. 4 Both the government\n\nand Pitch agree that none of the exceptions in Rule 6(e) apply, which allows Pitch\n\nto survive this threshold inquiry.\n\n III. The District Court’s Exercise of Discretion in the Present Case\n\n We must now decide whether the facts presented here constitute\n\n“exceptional circumstances” that allow a district court to employ its inherent\n\nauthority to disclose grand jury records outside the confines of Rule 6(e). The\n\n4\n This is merely derivative of the “cautionary principle” that courts will not “lightly assume that\nCongress has intended to depart from established principles such as the scope of a court’s\ninherent power.” Carlisle, 517 U.S. at 426, 116 S. Ct. at 1466 (quoting Chambers v. NASCO,\nInc., 501 U.S. 32, 47, 111 S. Ct. 2123, 2134 (1991)).\n 7\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 8 of 27\n\n\npetitioner has the burden of proving that “exceptional circumstances” exist. See\n\nHastings, 735 F.2d at 1272–73.\n\n A. The “Exceptional Circumstances” Test\n\n “[W]hile district courts have inherent authority to act outside Rule 6(e)(3),\n\nany inherent disclosure authority is exceedingly narrow . . . .” Aisenberg, 358 F.3d\n\nat 1347. “[C]ourts are not empowered to act outside Rule 6(e) in other than\n\nexceptional circumstances consonant with the rule’s policy and spirit.” Hastings,\n\n735 F.2d at 1269. Exceptional circumstances exist when the need for disclosure\n\noutweighs the public interest in continued secrecy. Id. at 1272, 1275; see also\n\nDouglas Oil, 441 U.S. at 223, 99 S. Ct. at 1275 (“[T]he court’s duty in a case of\n\nthis kind is to weigh carefully the competing interests in light of the relevant\n\ncircumstances and standards announced by this Court.”).\n\n On one side of the scale is the well-established public interest in secrecy of\n\ngrand jury records. Nondisclosure of grand jury records “prevent[s] the escape of\n\nthose whose indictment may be contemplated,” ensures “the utmost freedom to the\n\ngrand jury in its deliberations,” prevents “tampering with the witnesses who may\n\ntestify before the grand jury,” encourages “free and untrammeled disclosures by\n\npersons who have information” about the commission of crimes, and protects the\n\n“innocent accused who is exonerated” from public disclosure that he had been\n\nunder investigation. United States v. Procter & Gamble Co., 356 U.S. 677, 682\n\n\n 8\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 9 of 27\n\n\nn.6, 78 S. Ct. 983, 986 n.6 (1958). Given the importance of grand jury secrecy, the\n\nburden on the petitioner is high.\n\n The weight on the other side of the scale—the need for disclosure—requires\n\na fact intensive analysis that depends on the competing interests in a particular\n\ncase. In Hastings, for example, we held that “the petition of a judicial\n\ninvestigating committee is the kind of request which, in proper circumstances, can\n\ntrigger a district court’s inherent power to release grand jury minutes.” Hastings,\n\n735 F.2d at 1269. In Hastings, we stated that “courts must adhere to Rule 6(e) in\n\n‘garden variety’ petitions for grand jury disclosure,” recognizing that the Rule\n\n“would be rendered meaningless if departures were freely sanctioned.” Id. We\n\nemphasized there, as we do here, that “courts are not empowered to act outside\n\nRule 6(e) in other than exceptional circumstances.” Id. (emphasis added). In\n\nHastings, it was “highly significant that the grand jury materials in question were\n\nsought . . . pursuant to express statutory authority” of the judicial investigating\n\ncommittee. Id. at 1269–70. The court also considered that “a matter of great\n\nsocietal importance”—namely, “the important public interest in the integrity and\n\nindependence of the judiciary”—was implicated. Id. Finally, while no enumerated\n\nRule 6(e) exception governed the disclosure, the requested disclosure was\n\nanalogous to those permitted by the Rule. Id. at 1271–72.\n\n\n\n\n 9\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 10 of 27\n\n\n B. The Exception for Matters of Exceptional Historical Significance\n\n Under the proper circumstances, grand jury records on a matter of\n\nexceptional historical significance may trigger a district court’s inherent authority\n\nto disclose them. Our sister circuits have developed a multi-factor inquiry for\n\napplying the balancing test set forth in Hastings to the disclosure of historically\n\nsignificant grand jury records.5 In In re Petition of Craig, the Second Circuit\n\noutlined a “non-exhaustive list of factors that a trial court might want to consider\n\nwhen confronted with these highly discretionary and fact-sensitive” petitions:\n\n (i) the identity of the party seeking disclosure; (ii)\n whether the defendant to the grand jury proceeding or the\n government opposes the disclosure; (iii) why disclosure\n is being sought in the particular case; (iv) what specific\n information is being sought for disclosure; (v) how long\n ago the grand jury proceedings took place; (vi) the\n current status of the principals of the grand jury\n proceedings and that of their families; (vii) the extent to\n which the desired material—either permissibly or\n impermissibly—has been previously made public; (viii)\n whether witnesses to the grand jury proceedings who\n might be affected by disclosure are still alive; and (ix) the\n\n\n5\n At the time of this opinion, two circuits have addressed the issue. Both held that district courts\nhave inherent authority to disclose historically significant grand jury records. See In re Petition\nof Craig, 131 F.3d 99, 106 (2d Cir. 1997); Carlson v. United States, 837 F.3d 753 (7th Cir.\n2016). While not specifically addressing disclosure for historical significance, the Eighth Circuit\nhas expressed doubt that district courts have any inherent authority to act outside the enumerated\nRule 6(e) exceptions. See United States v. McDougal, 559 F.3d 837, 841 (8th Cir. 2009).\nFinally, the D.C. Circuit has acknowledged the “general agreement” that district courts have\ninherent authority to disclose grand jury material. See Haldeman v. Sirica, 501 F.2d 714, 715\n(D.C. Cir. 1974). Whether that inherent authority extends to disclosure for historical\nsignificance is pending in the D.C. Circuit. See McKeever v. Sessions, No. 17-5149 (D.C. Cir.\nfiled June 14, 2017).\n 10\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 11 of 27\n\n\n additional need for maintaining secrecy in the particular\n case in question.\n\n131 F.3d 99, 106 (2d Cir. 1997). But “there is no talismanic formula or rigid set of\n\nprerequisites,” and the specific circumstances of a case may lead to additional\n\nrelevant factors. Id.\n\n The first two Craig factors ask us to consider the interests of the parties: the\n\npetitioner, the government, and the defendant in the grand jury proceeding. First,\n\nthe petitioner, Pitch, is an accomplished author and historian. He has published\n\nmany historical works, including a book about the Moore’s Ford Lynching. As we\n\ndiscussed, while not dispositive, the government has a significant and well-\n\nestablished interest in grand jury secrecy that will always weigh against disclosure.\n\nSee Procter & Gamble, 356 U.S. at 682 n.6, 78 S. Ct. at 986 n.6. Finally, no\n\ndefendant in the Moore’s Ford grand jury proceeding has objected to disclosure.\n\nSee Craig, 131 F.3d at 106 (“And if a third-party stranger wishes to obtain release\n\nof data about secret meetings over the objection of the defendant, who, perhaps,\n\nwas never indicted by the grand jury, then the trial judge should be extremely\n\nhesitant to grant release of the grand jury material.”).\n\n The third, fourth, and seventh Craig factors concern the historical\n\nimportance of the information being sought. Pitch seeks disclosure for a\n\nlegitimate, scholarly purpose: to research, write, and educate the public about a\n\nsignificant event in the civil rights movement. Cf. Globe Newspaper Co. v. Sup.\n 11\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 12 of 27\n\n\nCt. for Norfolk Cty., 457 U.S. 596, 604, 102 S. Ct. 2613, 2619 (1982) (discussing\n\nthe constitutional right of the public to access records from criminal trials and\n\nreasoning that this right “serves to ensure that the individual citizen can effectively\n\nparticipate in and contribute to our republican system of self-government” by\n\nprotecting “the free discussion of governmental affairs”); In re Petition of Kutler,\n\n800 F. Supp. 2d 42, 48 (D.D.C. 2011) (reasoning that “[t]he disclosure of President\n\nNixon’s grand jury testimony would likely enhance the existing historical record,\n\nfoster further scholarly discussion, and improve the public’s understanding of a\n\nsignificant historical event.”).\n\n Historical importance is objective. It must be distinguished from\n\n“journalistic intrigue, public curiosity, or even a subjective importance to family\n\nand friends.” Craig, 131 F.3d at 105 n.8. The Moore’s Ford Lynching is clearly\n\nan event of exceptional historical significance. Compared to the journalist or the\n\nfamily member of a victim that seeks access to the details of a salacious unsolved\n\ncrime, the Moore’s Ford Lynching is historically significant because it is closely\n\ntied to the national civil rights movement. Many consider it to be the last mass\n\nlynching in American history. There has been, and continues to be, national media\n\nattention and widespread public interest in the murders. According to Pitch, the\n\nMoore’s Ford Lynching is credited as a catalyst to the President’s Committee on\n\nCivil Rights, which President Harry Truman created by executive order the same\n\n\n 12\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 13 of 27\n\n\nweek the Moore’s Ford grand jury was convened. See Exec. Order No. 9808, 11\n\nFed. Reg. 14153 (Dec. 5, 1946). It would be difficult to deny—and the\n\ngovernment does not attempt to do so on appeal—that the Moore’s Ford Lynching\n\nis, objectively, an exceptionally significant event in American history.\n\n Despite considerable public interest, the details are sparse. Even with a\n\ncrowd of witnesses, no one was prosecuted and no public proceedings were held.6\n\nFor this reason, Pitch sought disclosure of the entire transcript from the grand jury\n\nproceedings. As the district court did here, courts should give any party opposing\n\ndisclosure the opportunity to object to specific portions of the records. The district\n\ncourt should engage in the same balancing test to determine whether, and how\n\nmuch, those portions should be redacted or omitted. See Douglas Oil, 441 U.S. at\n\n223, 99 S. Ct. at 1675 (“And if disclosure is ordered, the court may include\n\nprotective limitations on the use of the disclosed material . . . .”); Hastings, 735\n\nF.2d at 1274–75 (approving the district court’s “protective conditions”).\n\n The interest in continued secrecy is also undercut if details in the records\n\nhave been publicized. See Craig, 131 F.3d at 107; cf. In re North, 16 F.3d 1234,\n\n1244–45 (D.C. Cir. 1994) (noting that widespread media release might undercut\n\ninterest in secrecy to point where Rule 6(e) would not prohibit disclosure). Here,\n\n\n\n6\n According to Pitch, the FBI interviewed over 2,700 people and subpoenaed over 100 witnesses\nto testify in front of the grand jury.\n 13\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 14 of 27\n\n\nthis factor weighs against disclosure. There is no indication that any portion of the\n\ngrand jury records has been made public, permissibly or not.\n\n Finally, the passage of time will often be the touchstone of our inquiry.\n\nEven if other factors weigh strongly in favor of disclosure, an insufficient passage\n\nof time since the grand jury proceedings took place is fatal to the petitioner’s\n\nrequest for disclosure. “[T]he passage of time erodes many of the justifications for\n\ncontinued secrecy.” Craig, 131 F.3d at 107. The sufficiency of the passage of\n\ntime must be viewed in light of the policy underlying grand jury secrecy: to protect\n\nthe important truth-seeking function of grand juries.7 As a result, the passage of\n\ntime generally must be long enough that the principal parties to the investigation—\n\nthe suspects and witnesses—and their immediate family members have likely died,\n\nand that there is no reasonable probability that the government would make arrests\n\nbased on the disclosed information. See id.\n\n Pitch requested the Moore’s Ford grand jury transcripts seventy-one years\n\nafter the grand jury proceeding took place.8 No one has been charged, no one is\n\ncurrently under active investigation, and the principal parties to the investigation\n\nwere adults at the time of the grand jury proceeding. Under these circumstances,\n\n\n7\n See generally United States v. Procter & Gamble Co., 356 U.S. 677, 682 n.6, 78 S. Ct. 983,\n986 n.6 (1958).\n8\n Pitch first requested the records three years earlier, in 2014, which the district court denied.\nThe government appeals from the district court’s grant of Pitch’s second petition, which he filed\nin 2017.\n 14\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 15 of 27\n\n\nseventy years is at or near the bounds of sufficient passage of time. There is no\n\nindication that any witnesses, suspects, or their immediate family members are\n\nalive to be intimidated, persecuted, or arrested. Like the court in Craig, we also\n\nfind it significant that the historical interest in the Moore’s Ford Lynching has\n\npersisted over time. See Craig, 131 F.3d at 107. Although it now seems nearly\n\nimpossible that anyone will ever be charged, the investigation has been reopened\n\nmany times, and the event has inspired annual reenactments and several books and\n\narticles spanning seven decades.\n\n Balancing these competing interests, the district court did not err in holding\n\nthat the interest in disclosure outweighed the interest in continued secrecy.\n\n IV. Conclusion\n\n “We consistently have recognized that the proper functioning of our grand\n\njury system depends upon the secrecy of grand jury proceedings,” but “a court\n\ncalled upon to determine whether grand jury transcripts should be released\n\nnecessarily is infused with substantial discretion.” Douglas Oil, 441 U.S. at 218,\n\n99 S. Ct. at 1672. Given our binding decision in Hastings, and the truly\n\n“exceptional circumstances” presented by the Moore’s Ford Lynching, we cannot\n\nsay that the district court abused its substantial discretion in ordering the release of\n\nthe grand jury transcripts. The judgment of the district court is affirmed.\n\n AFFIRMED.\n\n\n 15\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 16 of 27", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366605/", "author_raw": "WILSON, Circuit Judge:"}, {"author": "JORDAN, Circuit Judge, concurring", "type": "concurrence", "text": "JORDAN, Circuit Judge, concurring:\n\n Three decades ago, we held that a federal court has inherent authority to\n\norder the disclosure of grand jury materials in situations not covered by the\n\nexceptions to secrecy set forth in Federal Rule of Criminal Procedure 6(e). See In\n\nre Petition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261,\n\n1268 (11th Cir. 1984) (setting out an “exceptional circumstances” standard). I\n\nwould have decided Hastings differently because allowing the use of inherent\n\nauthority to go beyond the exceptions to grand jury secrecy set forth in Rule 6(e)\n\nseems too open-ended to me. See Carlson v. United States, 837 F.3d 753, 767-71\n\n(7th Cir. 2016) (Sykes, J., dissenting).\n\n Nevertheless, I join the court’s opinion. Given our decision in Hastings, I\n\ndo not see how we can say that the district court abused its discretion in relying on\n\nits inherent authority. In addition, I do not believe there is a persuasive basis to\n\ndistinguish between the disclosure of grand jury materials for use by a judicial\n\ninvestigating committee (what was at issue in Hastings) and the disclosure of\n\ngrand jury materials to discover the facts surrounding an event of exceptional\n\nhistorical significance (what is at issue here).\n\n **\n\n If we are going to deny disclosure here, we need to overrule Hastings, rather\n\nthan attempt to distinguish it. My initial view, following oral argument, was that\n\n\n 16\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 17 of 27\n\n\nwe should consider convening en banc to revisit Hastings. Upon further reflection,\n\nhowever, I have come to a different conclusion, and I’d like to explain why.\n\n First, Hastings does not stand alone. Other federal courts have likewise\n\ninvoked inherent authority to permit disclosure of grand jury materials in\n\ncircumstances not covered by Rule 6(e). See Carlson v. United States, 837 F.3d\n\n753, 763-66 (7th Cir. 2016); In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st\n\nCir. 2006); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997); In re Petition of Kutler,\n\n800 F. Supp. 2d 42, 48 (D.C. Cir. 2011). Cf. Haldeman v. Sirica, 501 F.2d 714,\n\n715 (D.C. Cir. 1974) (en banc) (denying mandamus relief sought by the\n\ngovernment to prevent the district court from disclosing to the House Judiciary\n\nCommittee, post-indictment, a sealed grand jury report and accompanying\n\nevidence, while indicating “general agreement” with the district court’s handling of\n\nthe matter). And at least one court has left the door open to the use of inherent\n\nauthority for disclosure in dicta. See In re Special Grand Jury 89-2, 450 F.3d\n\n1159, 1178 (10th Cir. 2006).\n\n No federal court, as far as I can tell, has come to a contrary conclusion in a\n\npublished opinion. The Eighth Circuit has said that “courts will not order\n\ndisclosure [of grand jury materials] absent a recognized exception to Rule 6(e) or a\n\nvalid challenge to the original sealing order or its implementation,” United States\n\nv. McDougal, 559 F.3d 837, 840 (8th Cir. 2009), but it was not faced in that case\n\n\n 17\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 18 of 27\n\n\nwith an argument for disclosure under inherent authority for matters of exceptional\n\nhistorical significance. Given the current array of authority, we would likely be\n\ncreating a circuit split by overruling Hastings, and that should not be done lightly.\n\n Second, whatever the initial reasons for keeping grand jury matters secret,\n\ncompare George Edwards, Jr., The Grand Jury 116 (1906) [Legal Classics Library\n\ned. 2003] (suggesting that the “original purpose [of grand jury secrecy] was that no\n\noffender should escape”), with Mark Kadish, Behind the Locked Doors of an\n\nAmerican Grand Jury: Its History, its Secrecy, and its Process, 24 Fl. St. U. L.\n\nRev. 1, 14 (1996) (explaining that the reasons for grand jury secrecy were varied,\n\nand included preventing the flight of suspected criminals, finding out whether\n\nwitnesses were biased, and ensuring freedom from judicial oversight), in the\n\nUnited States grand jury secrecy was not always seen as an absolute. In cases\n\ndecided before the enactment of the Federal Rules of Criminal Procedure, some\n\nfederal courts—including the Supreme Court—held (or at least said) that secrecy is\n\nnot required after an indictment is returned and the accused is in custody. “[A]fter\n\nthe grand jury’s functions are ended, disclosure is wholly proper where the ends of\n\njustice require it.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234\n\n(1940). Accord Metzler v. United States, 64 F.2d 203, 206 (9th Cir. 1933); Atwell\n\nv. United States, 162 F. 97, 99-100 (4th Cir. 1908); In re Grand Jury Proceedings,\n\n4 F. Supp. 283, 284-85 (E.D. Pa. 1933).\n\n\n 18\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 19 of 27\n\n\n If Rule 6(e) was meant to “continue[ ] the traditional practice of secrecy on\n\nthe part of members of the grand jury except when the court permits a disclosure,”\n\nRule 6(e), 1944 Advisory Committee Notes to Subdivision (e), there is a\n\nreasonable argument that Hastings and its progeny are at least consistent with\n\nhistorical practice. As we have said: “Although Rule 6(e)(3) enumerates the\n\nexceptions to the traditional rule of grand jury secrecy, the Supreme Court and this\n\nCourt have recognized that the district courts have inherent power beyond the\n\nliteral wording of Rule 6(e)(3) to disclose grand jury material and that Rule 6(e)(3)\n\nis but declaratory of that authority.” United States v. Aisenberg, 358 F.3d 1327,\n\n1347 (11th Cir. 2004). See also In re Request for Access to Grand Jury Materials,\n\n833 F.2d 1438, 1442 (11th Cir. 1987) (“As the considerations justifying secrecy\n\nbecome less relevant, the burden of showing the need for disclosure is lessened.”).\n\n Third, a survey of the relevant cases indicates that federal courts have been\n\nable to apply the test set forth in In re Craig, 131 F.3d at 106, without too much\n\ndifficulty in determining which matters of exceptional historical significance\n\nwarrant the disclosure of grand jury materials. See, e.g., In re Application to\n\nUnseal Dockets, 308 F. Supp. 3d 314, 326-35 (D.D.C. 2018); In re Nichter, 949 F.\n\nSupp. 2d 205, 212–14 (D.D.C. 2013). These courts have explained that\n\nexceptional historical significance, though a necessary element for disclosure, is\n\nitself not enough. Even if a matter or proceeding is historically significant to an\n\n\n 19\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 20 of 27\n\n\nexceptional degree, a court retains discretion to deny disclosure after balancing the\n\nrequisite factors. See, e.g., In re Nichter, 949 F.Supp.2d at 212-14.\n\n Fourth, and perhaps most importantly, a recent attempt to amend Rule 6(e)\n\nto permit the disclosure of grand jury records in cases of exceptional historical\n\nsignificance proved unsuccessful. The reason why this proposed amendment failed\n\nis insightful, and in my view counsels against revisiting Hastings at this time.\n\n In 2011, Attorney General Eric Holder recommended that Rule 6(e) be\n\namended to establish procedures for disclosing historically significant grand jury\n\nmaterials. See Letter from Attorney General Eric Holder to Judge Reena Raggi,\n\nChair of the Judicial Conference’s Advisory Committee on Criminal Rules, Oct.\n\n18, 2011 (attached). The Department of Justice questioned whether federal courts\n\nhad inherent authority to allow such disclosures given what it believed was Rule\n\n6(e)’s clear prohibition of disclosure of grand jury materials absent an express\n\nexception. See id. at 2-5. Attorney General Holder proposed that disclosure of\n\nhistorically significant grand jury materials be permitted, but only under new\n\nprocedures set forth in Rule 6(e) itself. The procedures suggested by the DOJ\n\nwould have required anyone seeking disclosure to show, among other things, that\n\nthe grand jury records in question have “exceptional” historical significance, that at\n\nleast 30 years have passed since the relevant case files associated with the grand\n\njury records were closed, that no living person would be materially prejudiced by\n\n\n 20\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 21 of 27\n\n\ndisclosure, and that disclosure would not impede any pending government\n\ninvestigation or prosecution. See id. at 8-9.\n\n The Judicial Conference’s Advisory Committee on Criminal Rules, then\n\nchaired by Second Circuit Judge Reena Raggi, reported in 2012 to the Committee\n\non Rules of Practice and Procedure that it believed that the DOJ’s proposed\n\namendment to Rule 6(e) was unnecessary. See Minutes of Meeting of June 11-12,\n\n2012, Judicial Conference Committee on Rules of Practice and Procedure, at 44\n\n(relevant pages attached). According to Judge Raggi, all members of a\n\nsubcommittee of the Advisory Committee on Criminal Rules—with the exception\n\nof the DOJ representative—recommended that the DOJ’s proposed amendment\n\n“not be pursued” because “in the rare cases where disclosure of historic materials\n\nhad been sought, the district [courts] acted reasonably in referring to their inherent\n\nauthority,” and as a result “there [wa]s no need for a rule on the subject.” Id.\n\n What happened (or, more accurately, did not happen) in 2012 is not, of\n\ncourse, dispositive. But it is instructive. If those charged with considering\n\namendments to the Federal Rules of Criminal Procedure believed in 2012 that\n\nfederal courts had properly relied on inherent authority to order the disclosure of\n\nhistorically significant grand jury materials, the case for overruling Hastings is\n\nlessened.\n\n\n\n\n 21\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 22 of 27\n\n\n ***\n\nWith these thoughts, I join the court’s opinion.\n\n\n\n\n 22\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 23 of 27", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366605/", "author_raw": "JORDAN, Circuit Judge, concurring"}, {"author": "GRAHAM, District Judge, dissenting", "type": "dissent", "text": "GRAHAM, District Judge, dissenting:\n The court creates an exception to the rule of grand jury secrecy, doing so on\n\nthe assertion that the rationale for secrecy erodes over time. The exception appears\n\nto be limited to matters fitting two main criteria: enough time has elapsed for the\n\nparties to the event to have died and enough present-day authority considers the\n\nevent to be of exceptional historical significance. The court states that the test for\n\nhistorical significance is objective but leaves the test open-ended. The court\n\nprovides little guidance for the analysis except to say that historical significance\n\nrequires more than an interested journalist, curious public or concerned friend or\n\nfamily member.\n\n I disagree with the majority on several fronts. I believe that judges should\n\nnot be so bold as to grant themselves the authority to decide that the historical\n\nsignificance exception should exist and what the criteria should be. I agree with\n\nthe dissent of Judge Sykes in Carlson v. United States, 837 F.3d 753, 767 (7th Cir.\n\n2016) (Sykes, J., dissenting), and would hold that Rule 6(e) of the Federal Rules of\n\nCriminal Procedure limits a district court’s authority to order the disclosure of\n\ngrand jury records. Rule 6(e)(3) codifies the policy choices made about which\n\nexceptions should be recognized. Nothing analogous to a historical significance\n\nexception can be found there.\n\n\n\n\n 23\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 24 of 27\n\n\n The court relies on Hastings to sanction a broader exercise of judicial power\n\nthan the decision’s narrow holding supports. Hastings permitted an exception to\n\ngrand jury secrecy for a judicial investigating committee. It found the situation to\n\nbe “closely akin” to the Rule 6(e)(3)(E)(i) exception for judicial proceedings. In re\n\nPetition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261, 1272\n\n(11th Cir. 1984). An exception for matters of historical significance bears no\n\nresemblance to an exception which applies “to assist in preparation or conduct of a\n\njudicial proceeding.” United States v. Baggot, 463 U.S. 476, 480, 103 S. Ct. 3164,\n\n3167 (1983).\n\n But even if a district court has inherent authority to order disclosure outside\n\nof Rule 6(e), I do not believe it should be exercised in this case. The rule of grand\n\njury secrecy serves many interests, including “assur[ing] that persons who are\n\naccused but exonerated by the grand jury will not be held up to public ridicule.”\n\nDouglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 219, 99 S. Ct. 1667,\n\n1673 (1979). This case presses the matter further, both in time and scope. Do\n\nsubsequent generations—the children, grandchildren and beyond—of not only the\n\nsuspects but also the grand jury witnesses and grand jurors themselves have\n\nreputational interests that warrant protection?\n\n Because “secrecy of the grand jury is sacrosanct,” United States v. Phillips,\n\n843 F.2d 438, 441 (11th Cir. 1988), and because disclosure of grand jury material\n\n\n 24\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 25 of 27\n\n\nis prohibited “except in the limited circumstances provided for in Rule 6(e)(3),”\n\nUnited States v. Aisenberg, 358 F.3d 1327, 1347 (11th Cir. 2004), the rule of\n\nsecrecy, as codified in Rule 6(e)(3), has always applied to protect the interests of\n\nsubsequent generations.\n\n Disclosure of grand jury records should not be permitted without an exacting\n\nreview which gives due weight to the privacy and reputational interests at stake. It\n\nis troubling that the court has authorized disclosure of the records without\n\nexamining their contents.1 It is troubling too that the government has elected not\n\nto contest the proposition that there is no interest to be served in continued secrecy.\n\n That an event has exceptional historical significance cuts both ways. With\n\nthe principal parties having passed away and the investigation gone cold, one\n\nmight conclude the matter is stale and the need for secrecy over. Yet, exceptional\n\nsignificance suggests a continued interest in, and impact from, the event. The\n\nMoore’s Ford Lynching played a part in the civil rights movement and interest\n\nremains very much alive, particularly among members of the community affected\n\nby the event. The depth of their interest is illustrated by the Moore’s Ford\n\nMemorial Committee, which has advocated for racial justice and held events\n\nmemorializing the victims over the past two decades. The Committee has placed\n\ngrave markers for the victims and a historical marker near the site of the lynching.\n\n\n 1\n The grand jury records were not made a part of the record before the court.\n 25\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 26 of 27\n\n\nA member of the Committee and a granddaughter of one the victims attended oral\n\nargument in this appeal. Community members organize an annual reenactment in\n\nhonor of the victims. They still search for justice.\n\n The vitality of the community’s continued interest raises possible\n\nrepercussions for the living descendants and relatives of those individuals whom\n\nthe grand jury records will identify as being suspects, witnesses and grand jurors.\n\nThe modern public rightly views the lynching and failure to indict as a horrific\n\ninjustice, and many perceive it to have been the work of the Ku Klux Klan. Would\n\nknowing that grand jury records could someday be disclosed and affect the\n\nstanding of a child or grandchild in the community deter a grand jury witness from\n\nfully telling the truth? Could the conduct of a witness or grand juror involved in an\n\nevent that is viewed at the time as momentous or sensational be influenced by a\n\nconcern for their own legacy among future generations?\n\n I would hold that the reputational interests protected by Rule 6(e) include\n\nthose of subsequent generations. I am unable to dismiss the reputational harm that\n\ncould occur to a living person if the grand jury transcripts reveal that their parent or\n\ngrandparent was a suspect, a witness who equivocated or was uncooperative, a\n\nmember of the grand jury which refused to indict, or a person whose name was\n\nidentified as a Klan member.\n\n\n\n\n 26\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 27 of 27\n\n\n Accordingly, I dissent and would reverse the district court’s order. At a\n\nminimum this court should provide protections to limit the harm its newly-created\n\nexception to grand jury secrecy could cause. The court should, for example,\n\ninstruct the district court on remand to examine the grand jury records, with the\n\nassistance of the government, and to protect discernible reputational interests by\n\ntaking measures such as redacting names and other identifying information.\n\n\n\n\n 27", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366605/", "author_raw": "GRAHAM, District Judge, dissenting"}]}	WILSON	JORDAN	GRAHAM	1	{}	6	2	2	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4589352/	Published	1	1	1	0	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,873		Anthony S. Pitch v. United States	2019-02-11	17-15016	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before WILSON and JORDAN, Circuit Judges, and GRAHAM, * District Judge.", "parties": "", "opinions": [{"author": "WILSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-15016 Date Filed: 02/11/2019 Page: 1 of 40\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15016\n ________________________\n\n D.C. Docket No. 5:14-mc-00002-MTT\n\n\n\nANTHONY S. PITCH,\n\n Plaintiff - Appellee,\n\nversus\n\nUNITED STATES OF AMERICA,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Georgia\n ________________________\n\n (February 11, 2019)\n\nBefore WILSON and JORDAN, Circuit Judges, and GRAHAM, * District Judge.\n\nWILSON, Circuit Judge:\n\n\n\n Honorable James L. Graham, United States District Judge for the Southern District of Ohio,\nsitting by designation.\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 2 of 40\n\n\n In 1946, a crowd of people in Walton County, Georgia gathered as two\n\nAfrican American couples were dragged from a car and shot multiple times. 1\n\nMany consider this event, known as the Moore’s Ford Lynching, to be the last\n\nmass lynching in American history. Racial tensions in Georgia were high. African\n\nAmerican citizens were allowed to vote in a Georgia Democratic Party primary for\n\nthe first time that year. 2 The murders occurred shortly after the primary and\n\nimmediately garnered national media attention. National outrage, including\n\ncondemnation from then Special Counsel to the NAACP Thurgood Marshall,\n\nultimately led President Harry Truman to order an FBI investigation. In late 1946,\n\na district court judge in Georgia convened a grand jury. But after sixteen days of\n\nwitness testimony, no one was ever charged. The case remains unsolved.\n\n Over seven decades later, Anthony Pitch, an author and historian, petitioned\n\nthe Middle District of Georgia for an order unsealing the grand jury transcripts.\n\nThe district court granted his request. The government now appeals, arguing the\n\ndistrict court abused its discretion in unsealing the transcripts. After careful review\n\nand with the benefit of oral argument, we affirm.\n\n\n\n\n1\n There are differing accounts on the number of shots and the number of people present.\nEstimates suggest that between thirty and one hundred people were present.\n2\n The Fifth Circuit had recently held that the Georgia Democratic Party’s all-white primary\nsystem was unconstitutional. Chapman v. King, 154 F.2d 460 (5th Cir. 1946), cert. denied, 327\nU.S. 800, 66 S. Ct. 905 (1946).\n 2\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 3 of 40\n\n\n I. Factual and Procedural Background\n\n Anthony Pitch wrote a book about the Moore’s Ford Lynching. In 2014,\n\nwhile researching the event for the book, Pitch petitioned the Middle District of\n\nGeorgia to unseal the federal grand jury records related to the incident. Initially,\n\nthe district court denied the petition without prejudice because Pitch did not\n\npresent evidence that the records even existed. Three years later, Pitch renewed his\n\npetition, arguing that his investigation revealed that the records were at the\n\nNational Archives in Washington, D.C. The district court ordered the government\n\nto produce the records for in camera inspection. The government filed the\n\ntranscripts under seal. And against the objections of the government, the district\n\ncourt ordered the transcripts be unsealed. To do so, the district court relied on its\n\ninherent authority under In re Petition to Inspect & Copy Grand Jury Materials\n\n(Hastings), 735 F.2d 1261 (11th Cir. 1984).\n\n On appeal, the government argues first, that the district court lacked inherent\n\nauthority to disclose the transcripts, and second, even assuming the district court\n\nhad inherent authority, the court exceeded that authority by permitting disclosure\n\nbased solely on the historical significance of the Moore’s Ford Lynching. Because\n\nwe are bound by our decision in Hastings, we affirm. See Kondrat’yev v. City of\n\nPensacola, Fla., 903 F.3d 1169, 1174 (11th Cir. 2018) (per curiam) (“[O]ur\n\nprecedent—in particular, our precedent about precedent—is clear: ‘[W]e are not at\n\n\n 3\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 4 of 40\n\n\nliberty to disregard binding case law that is . . . closely on point and has been only\n\nweakened, rather than directly overruled, by the Supreme Court.’” (quoting Fla.\n\nLeague of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996))).\n\n II. Power of District Courts to Disclose Grand Jury Records\n\n The government argues that the district court erred in invoking its inherent\n\nauthority to disclose the grand jury records. We review a district court’s disclosure\n\nof grand jury transcripts for abuse of discretion. United States v. Aisenberg, 358\n\nF.3d 1327, 1338 (11th Cir. 2004). A court abuses its discretion when it commits\n\nan error of law. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).\n\n A. Statutory Authority to Disclose Grand Jury Records\n\n Grand jury secrecy is “an integral part of our criminal justice system.”\n\nBlalock v. United States, 844 F.2d 1546, 1555 (11th Cir. 1988) (per curiam). Even\n\nafter an investigation has ended, grand jury proceedings generally remain secret.\n\n“The grand jury as a public institution serving the community might suffer if those\n\ntestifying today knew that the secrecy of their testimony would be lifted\n\ntomorrow.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct.\n\n983, 986 (1958). Federal Rule of Criminal Procedure 6(e) codifies the general rule\n\nprohibiting the disclosure of grand jury records. Rule 6(e) requires that “[r]ecords,\n\norders, and subpoenas relating to grand-jury proceedings . . . be kept under seal . . .\n\n\n\n\n 4\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 5 of 40\n\n\nto prevent the unauthorized disclosure of a matter occurring before a grand jury.”\n\nFED. R. CRIM. P. 6(e)(6).\n\n Rule 6(e) also codifies a list of exceptions to its general rule of secrecy. The\n\nonly enumerated exception available to a party other than the government or a\n\nparty in the grand jury proceeding is Rule 6(e)(3)(E)(i), which allows a court to\n\nauthorize disclosure of grand jury records “preliminarily to or in connection with a\n\njudicial proceeding.” A party invoking this exception must prove that “the\n\nmaterial they seek is needed to avoid a possible injustice in another court\n\nproceeding, that the need for disclosure is greater than the need for continued\n\nsecrecy, and that their request is structured to cover only material so needed.”\n\nDouglas Oil Co. of Ca. v. Petrol Stops NW, 441 U.S. 211, 222, 99 S. Ct. 1667,\n\n1674 (1979). Pitch agrees that he cannot benefit from this exception because the\n\ngrand jury records he sought were not necessary in “another court proceeding.”\n\n B. Inherent Authority to Disclose Grand Jury Records\n\n We have recognized that district courts retain “inherent power beyond the\n\nliteral wording of Rule 6(e)” to disclose grand jury material not otherwise covered\n\nby the exceptions. Hastings, 735 F.2d at 1268.3 “[T]he exceptions permitting\n\n\n3\n The government argues that we are no longer bound by Hastings because the Supreme Court\nhas rejected its reasoning. In Carlisle v. United States, the Supreme Court held that “[w]hatever\nthe scope of [a court’s] ‘inherent power,’ . . . it does not include the power to develop rules that\ncircumvent or conflict with the Federal Rules of Civil Procedure.” 517 U.S. 416, 426, 116 S. Ct.\n1460, 1466 (1996) (emphasis added). This passage must be read in context. Carlisle held that a\ndistrict court cannot directly contradict an applicable and unambiguous Federal Rule of Criminal\n 5\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 6 of 40\n\n\ndisclosure were not intended to ossify the law, but rather are subject to\n\ndevelopment by the courts in conformance with the Rule’s general rule of\n\nsecrecy.” Id. at 1269; accord United States v. Aisenberg, 358 F.3d 1327, 1347\n\n(11th Cir. 2004) (“Although Rule 6(e)(3) enumerates the exceptions to the\n\ntraditional rule of grand jury secrecy, the Supreme Court and this Court have\n\nrecognized that the district courts have inherent power beyond the literal wording\n\nof Rule 6(e)(3) to disclose grand jury material and that Rule 6(e)(3) is but\n\ndeclaratory of that authority.”); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997)\n\n(“[P]ermitting departures from Rule 6(e) is fully consonant with the role of the\n\nsupervising court and will not unravel the foundations of secrecy upon which the\n\ngrand jury is premised.”); Carlson v. United States, 837 F.3d 753, 763 (7th Cir.\n\n2016) (“Rule 6(e) is but declaratory of the long-standing principle that disclosure\n\nof grand jury materials is committed to the discretion of the trial court.”) (internal\n\nquotation marks omitted).\n\n\n\nProcedure by invoking its inherent authority. In Carlisle, the Supreme Court held that a district\ncourt could not rely on inherent authority to enter a judgment of acquittal after the seven-day\ntime limit prescribed by Rule 29(c) had expired. Id. at 426. The district court there\n“contradicted the plain language” of the Rule by “effectively annul[ing]” the seven-day time\nlimit prescribed by Congress. Id. We do not read Carlisle to prohibit the exercise of that\nauthority in “exceptional circumstances consonant with the rule’s policy and spirit.” Hastings,\n735 F.2d at 1269; cf. United States v. Aisenberg, 358 F.3d 1327 (11th Cir. 2004) (holding that a\npetitioner cannot circumvent the plain text of an applicable rule or the Douglas Oil test by\nasserting inherent authority). “[W]e are not at liberty to disregard binding case law that is . . .\nclosely on point and has been only weakened, rather than directly overruled, by the Supreme\nCourt.” Kondrat’yev, 903 F.3d at 1174 (internal quotation marks omitted). We are thus bound\nby Hastings.\n 6\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 7 of 40\n\n\n “This is not to say [Rule 6(e)] is not normally controlling. It is.” Hastings,\n\n735 F.2d at 1268. Petitioners and district courts cannot rely on inherent authority\n\nto circumvent a plainly applicable and unambiguous enumerated Rule 6(e)\n\nexception. See Aisenberg, 358 F.3d 1327 (declining to allow petitioners to rely on\n\ninherent authority because petitioners’ request was “preliminarily to or in\n\nconnection with a judicial proceeding” under the Rule 6(e)(3)(E)(i) exception); cf.\n\nCarlisle v. United States, 517 U.S. 416, 426 (1996) (holding that a district court\n\ncould not use inherent authority to extend a plain and unambiguous Rule of\n\nCriminal Procedure that limited district court’s authority to enter a judgment of\n\nacquittal to seven days). The upshot, then, is a district court may only invoke its\n\ninherent authority to disclose grand jury records when an enumerated Rule 6(e)\n\nexception does not directly govern the requested disclosure. 4 Both the government\n\nand Pitch agree that none of the exceptions in Rule 6(e) apply, which allows Pitch\n\nto survive this threshold inquiry.\n\n III. The District Court’s Exercise of Discretion in the Present Case\n\n We must now decide whether the facts presented here constitute\n\n“exceptional circumstances” that allow a district court to employ its inherent\n\nauthority to disclose grand jury records outside the confines of Rule 6(e). The\n\n4\n This is merely derivative of the “cautionary principle” that courts will not “lightly assume that\nCongress has intended to depart from established principles such as the scope of a court’s\ninherent power.” Carlisle, 517 U.S. at 426, 116 S. Ct. at 1466 (quoting Chambers v. NASCO,\nInc., 501 U.S. 32, 47, 111 S. Ct. 2123, 2134 (1991)).\n 7\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 8 of 40\n\n\npetitioner has the burden of proving that “exceptional circumstances” exist. See\n\nHastings, 735 F.2d at 1272–73.\n\n A. The “Exceptional Circumstances” Test\n\n “[W]hile district courts have inherent authority to act outside Rule 6(e)(3),\n\nany inherent disclosure authority is exceedingly narrow . . . .” Aisenberg, 358 F.3d\n\nat 1347. “[C]ourts are not empowered to act outside Rule 6(e) in other than\n\nexceptional circumstances consonant with the rule’s policy and spirit.” Hastings,\n\n735 F.2d at 1269. Exceptional circumstances exist when the need for disclosure\n\noutweighs the public interest in continued secrecy. Id. at 1272, 1275; see also\n\nDouglas Oil, 441 U.S. at 223, 99 S. Ct. at 1275 (“[T]he court’s duty in a case of\n\nthis kind is to weigh carefully the competing interests in light of the relevant\n\ncircumstances and standards announced by this Court.”).\n\n On one side of the scale is the well-established public interest in secrecy of\n\ngrand jury records. Nondisclosure of grand jury records “prevent[s] the escape of\n\nthose whose indictment may be contemplated,” ensures “the utmost freedom to the\n\ngrand jury in its deliberations,” prevents “tampering with the witnesses who may\n\ntestify before the grand jury,” encourages “free and untrammeled disclosures by\n\npersons who have information” about the commission of crimes, and protects the\n\n“innocent accused who is exonerated” from public disclosure that he had been\n\nunder investigation. United States v. Procter & Gamble Co., 356 U.S. 677, 682\n\n\n 8\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 9 of 40\n\n\nn.6, 78 S. Ct. 983, 986 n.6 (1958). Given the importance of grand jury secrecy, the\n\nburden on the petitioner is high.\n\n The weight on the other side of the scale—the need for disclosure—requires\n\na fact intensive analysis that depends on the competing interests in a particular\n\ncase. In Hastings, for example, we held that “the petition of a judicial\n\ninvestigating committee is the kind of request which, in proper circumstances, can\n\ntrigger a district court’s inherent power to release grand jury minutes.” Hastings,\n\n735 F.2d at 1269. In Hastings, we stated that “courts must adhere to Rule 6(e) in\n\n‘garden variety’ petitions for grand jury disclosure,” recognizing that the Rule\n\n“would be rendered meaningless if departures were freely sanctioned.” Id. We\n\nemphasized there, as we do here, that “courts are not empowered to act outside\n\nRule 6(e) in other than exceptional circumstances.” Id. (emphasis added). In\n\nHastings, it was “highly significant that the grand jury materials in question were\n\nsought . . . pursuant to express statutory authority” of the judicial investigating\n\ncommittee. Id. at 1269–70. The court also considered that “a matter of great\n\nsocietal importance”—namely, “the important public interest in the integrity and\n\nindependence of the judiciary”—was implicated. Id. Finally, while no enumerated\n\nRule 6(e) exception governed the disclosure, the requested disclosure was\n\nanalogous to those permitted by the Rule. Id. at 1271–72.\n\n\n\n\n 9\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 10 of 40\n\n\n B. The Exception for Matters of Exceptional Historical Significance\n\n Under the proper circumstances, grand jury records on a matter of\n\nexceptional historical significance may trigger a district court’s inherent authority\n\nto disclose them. Our sister circuits have developed a multi-factor inquiry for\n\napplying the balancing test set forth in Hastings to the disclosure of historically\n\nsignificant grand jury records.5 In In re Petition of Craig, the Second Circuit\n\noutlined a “non-exhaustive list of factors that a trial court might want to consider\n\nwhen confronted with these highly discretionary and fact-sensitive” petitions:\n\n (i) the identity of the party seeking disclosure; (ii)\n whether the defendant to the grand jury proceeding or the\n government opposes the disclosure; (iii) why disclosure\n is being sought in the particular case; (iv) what specific\n information is being sought for disclosure; (v) how long\n ago the grand jury proceedings took place; (vi) the\n current status of the principals of the grand jury\n proceedings and that of their families; (vii) the extent to\n which the desired material—either permissibly or\n impermissibly—has been previously made public; (viii)\n whether witnesses to the grand jury proceedings who\n might be affected by disclosure are still alive; and (ix) the\n\n\n5\n At the time of this opinion, two circuits have addressed the issue. Both held that district courts\nhave inherent authority to disclose historically significant grand jury records. See In re Petition\nof Craig, 131 F.3d 99, 106 (2d Cir. 1997); Carlson v. United States, 837 F.3d 753 (7th Cir.\n2016). While not specifically addressing disclosure for historical significance, the Eighth Circuit\nhas expressed doubt that district courts have any inherent authority to act outside the enumerated\nRule 6(e) exceptions. See United States v. McDougal, 559 F.3d 837, 841 (8th Cir. 2009).\nFinally, the D.C. Circuit has acknowledged the “general agreement” that district courts have\ninherent authority to disclose grand jury material. See Haldeman v. Sirica, 501 F.2d 714, 715\n(D.C. Cir. 1974). Whether that inherent authority extends to disclosure for historical\nsignificance is pending in the D.C. Circuit. See McKeever v. Sessions, No. 17-5149 (D.C. Cir.\nfiled June 14, 2017).\n 10\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 11 of 40\n\n\n additional need for maintaining secrecy in the particular\n case in question.\n\n131 F.3d 99, 106 (2d Cir. 1997). But “there is no talismanic formula or rigid set of\n\nprerequisites,” and the specific circumstances of a case may lead to additional\n\nrelevant factors. Id.\n\n The first two Craig factors ask us to consider the interests of the parties: the\n\npetitioner, the government, and the defendant in the grand jury proceeding. First,\n\nthe petitioner, Pitch, is an accomplished author and historian. He has published\n\nmany historical works, including a book about the Moore’s Ford Lynching. As we\n\ndiscussed, while not dispositive, the government has a significant and well-\n\nestablished interest in grand jury secrecy that will always weigh against disclosure.\n\nSee Procter & Gamble, 356 U.S. at 682 n.6, 78 S. Ct. at 986 n.6. Finally, no\n\ndefendant in the Moore’s Ford grand jury proceeding has objected to disclosure.\n\nSee Craig, 131 F.3d at 106 (“And if a third-party stranger wishes to obtain release\n\nof data about secret meetings over the objection of the defendant, who, perhaps,\n\nwas never indicted by the grand jury, then the trial judge should be extremely\n\nhesitant to grant release of the grand jury material.”).\n\n The third, fourth, and seventh Craig factors concern the historical\n\nimportance of the information being sought. Pitch seeks disclosure for a\n\nlegitimate, scholarly purpose: to research, write, and educate the public about a\n\nsignificant event in the civil rights movement. Cf. Globe Newspaper Co. v. Sup.\n 11\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 12 of 40\n\n\nCt. for Norfolk Cty., 457 U.S. 596, 604, 102 S. Ct. 2613, 2619 (1982) (discussing\n\nthe constitutional right of the public to access records from criminal trials and\n\nreasoning that this right “serves to ensure that the individual citizen can effectively\n\nparticipate in and contribute to our republican system of self-government” by\n\nprotecting “the free discussion of governmental affairs”); In re Petition of Kutler,\n\n800 F. Supp. 2d 42, 48 (D.D.C. 2011) (reasoning that “[t]he disclosure of President\n\nNixon’s grand jury testimony would likely enhance the existing historical record,\n\nfoster further scholarly discussion, and improve the public’s understanding of a\n\nsignificant historical event.”).\n\n Historical importance is objective. It must be distinguished from\n\n“journalistic intrigue, public curiosity, or even a subjective importance to family\n\nand friends.” Craig, 131 F.3d at 105 n.8. The Moore’s Ford Lynching is clearly\n\nan event of exceptional historical significance. Compared to the journalist or the\n\nfamily member of a victim that seeks access to the details of a salacious unsolved\n\ncrime, the Moore’s Ford Lynching is historically significant because it is closely\n\ntied to the national civil rights movement. Many consider it to be the last mass\n\nlynching in American history. There has been, and continues to be, national media\n\nattention and widespread public interest in the murders. According to Pitch, the\n\nMoore’s Ford Lynching is credited as a catalyst to the President’s Committee on\n\nCivil Rights, which President Harry Truman created by executive order the same\n\n\n 12\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 13 of 40\n\n\nweek the Moore’s Ford grand jury was convened. See Exec. Order No. 9808, 11\n\nFed. Reg. 14153 (Dec. 5, 1946). It would be difficult to deny—and the\n\ngovernment does not attempt to do so on appeal—that the Moore’s Ford Lynching\n\nis, objectively, an exceptionally significant event in American history.\n\n Despite considerable public interest, the details are sparse. Even with a\n\ncrowd of witnesses, no one was prosecuted and no public proceedings were held.6\n\nFor this reason, Pitch sought disclosure of the entire transcript from the grand jury\n\nproceedings. As the district court did here, courts should give any party opposing\n\ndisclosure the opportunity to object to specific portions of the records. The district\n\ncourt should engage in the same balancing test to determine whether, and how\n\nmuch, those portions should be redacted or omitted. See Douglas Oil, 441 U.S. at\n\n223, 99 S. Ct. at 1675 (“And if disclosure is ordered, the court may include\n\nprotective limitations on the use of the disclosed material . . . .”); Hastings, 735\n\nF.2d at 1274–75 (approving the district court’s “protective conditions”).\n\n The interest in continued secrecy is also undercut if details in the records\n\nhave been publicized. See Craig, 131 F.3d at 107; cf. In re North, 16 F.3d 1234,\n\n1244–45 (D.C. Cir. 1994) (noting that widespread media release might undercut\n\ninterest in secrecy to point where Rule 6(e) would not prohibit disclosure). Here,\n\n\n\n6\n According to Pitch, the FBI interviewed over 2,700 people and subpoenaed over 100 witnesses\nto testify in front of the grand jury.\n 13\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 14 of 40\n\n\nthis factor weighs against disclosure. There is no indication that any portion of the\n\ngrand jury records has been made public, permissibly or not.\n\n Finally, the passage of time will often be the touchstone of our inquiry.\n\nEven if other factors weigh strongly in favor of disclosure, an insufficient passage\n\nof time since the grand jury proceedings took place is fatal to the petitioner’s\n\nrequest for disclosure. “[T]he passage of time erodes many of the justifications for\n\ncontinued secrecy.” Craig, 131 F.3d at 107. The sufficiency of the passage of\n\ntime must be viewed in light of the policy underlying grand jury secrecy: to protect\n\nthe important truth-seeking function of grand juries.7 As a result, the passage of\n\ntime generally must be long enough that the principal parties to the investigation—\n\nthe suspects and witnesses—and their immediate family members have likely died,\n\nand that there is no reasonable probability that the government would make arrests\n\nbased on the disclosed information. See id.\n\n Pitch requested the Moore’s Ford grand jury transcripts seventy-one years\n\nafter the grand jury proceeding took place.8 No one has been charged, no one is\n\ncurrently under active investigation, and the principal parties to the investigation\n\nwere adults at the time of the grand jury proceeding. Under these circumstances,\n\n\n7\n See generally United States v. Procter & Gamble Co., 356 U.S. 677, 682 n.6, 78 S. Ct. 983,\n986 n.6 (1958).\n8\n Pitch first requested the records three years earlier, in 2014, which the district court denied.\nThe government appeals from the district court’s grant of Pitch’s second petition, which he filed\nin 2017.\n 14\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 15 of 40\n\n\nseventy years is at or near the bounds of sufficient passage of time. There is no\n\nindication that any witnesses, suspects, or their immediate family members are\n\nalive to be intimidated, persecuted, or arrested. Like the court in Craig, we also\n\nfind it significant that the historical interest in the Moore’s Ford Lynching has\n\npersisted over time. See Craig, 131 F.3d at 107. Although it now seems nearly\n\nimpossible that anyone will ever be charged, the investigation has been reopened\n\nmany times, and the event has inspired annual reenactments and several books and\n\narticles spanning seven decades.\n\n Balancing these competing interests, the district court did not err in holding\n\nthat the interest in disclosure outweighed the interest in continued secrecy.\n\n IV. Conclusion\n\n “We consistently have recognized that the proper functioning of our grand\n\njury system depends upon the secrecy of grand jury proceedings,” but “a court\n\ncalled upon to determine whether grand jury transcripts should be released\n\nnecessarily is infused with substantial discretion.” Douglas Oil, 441 U.S. at 218,\n\n99 S. Ct. at 1672. Given our binding decision in Hastings, and the truly\n\n“exceptional circumstances” presented by the Moore’s Ford Lynching, we cannot\n\nsay that the district court abused its substantial discretion in ordering the release of\n\nthe grand jury transcripts. The judgment of the district court is affirmed.\n\n AFFIRMED.\n\n\n 15\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 16 of 40", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367126/", "author_raw": "WILSON, Circuit Judge:"}, {"author": "JORDAN, Circuit Judge, concurring", "type": "concurrence", "text": "JORDAN, Circuit Judge, concurring:\n\n Three decades ago, we held that a federal court has inherent authority to\n\norder the disclosure of grand jury materials in situations not covered by the\n\nexceptions to secrecy set forth in Federal Rule of Criminal Procedure 6(e). See In\n\nre Petition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261,\n\n1268 (11th Cir. 1984) (setting out an “exceptional circumstances” standard). I\n\nwould have decided Hastings differently because allowing the use of inherent\n\nauthority to go beyond the exceptions to grand jury secrecy set forth in Rule 6(e)\n\nseems too open-ended to me. See Carlson v. United States, 837 F.3d 753, 767-71\n\n(7th Cir. 2016) (Sykes, J., dissenting).\n\n Nevertheless, I join the court’s opinion. Given our decision in Hastings, I\n\ndo not see how we can say that the district court abused its discretion in relying on\n\nits inherent authority. In addition, I do not believe there is a persuasive basis to\n\ndistinguish between the disclosure of grand jury materials for use by a judicial\n\ninvestigating committee (what was at issue in Hastings) and the disclosure of\n\ngrand jury materials to discover the facts surrounding an event of exceptional\n\nhistorical significance (what is at issue here).\n\n **\n\n If we are going to deny disclosure here, we need to overrule Hastings, rather\n\nthan attempt to distinguish it. My initial view, following oral argument, was that\n\n\n 16\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 17 of 40\n\n\nwe should consider convening en banc to revisit Hastings. Upon further reflection,\n\nhowever, I have come to a different conclusion, and I’d like to explain why.\n\n First, Hastings does not stand alone. Other federal courts have likewise\n\ninvoked inherent authority to permit disclosure of grand jury materials in\n\ncircumstances not covered by Rule 6(e). See Carlson v. United States, 837 F.3d\n\n753, 763-66 (7th Cir. 2016); In re Grand Jury Proceedings, 417 F.3d 18, 26 (1st\n\nCir. 2006); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997); In re Petition of Kutler,\n\n800 F. Supp. 2d 42, 48 (D.C. Cir. 2011). Cf. Haldeman v. Sirica, 501 F.2d 714,\n\n715 (D.C. Cir. 1974) (en banc) (denying mandamus relief sought by the\n\ngovernment to prevent the district court from disclosing to the House Judiciary\n\nCommittee, post-indictment, a sealed grand jury report and accompanying\n\nevidence, while indicating “general agreement” with the district court’s handling of\n\nthe matter). And at least one court has left the door open to the use of inherent\n\nauthority for disclosure in dicta. See In re Special Grand Jury 89-2, 450 F.3d\n\n1159, 1178 (10th Cir. 2006).\n\n No federal court, as far as I can tell, has come to a contrary conclusion in a\n\npublished opinion. The Eighth Circuit has said that “courts will not order\n\ndisclosure [of grand jury materials] absent a recognized exception to Rule 6(e) or a\n\nvalid challenge to the original sealing order or its implementation,” United States\n\nv. McDougal, 559 F.3d 837, 840 (8th Cir. 2009), but it was not faced in that case\n\n\n 17\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 18 of 40\n\n\nwith an argument for disclosure under inherent authority for matters of exceptional\n\nhistorical significance. Given the current array of authority, we would likely be\n\ncreating a circuit split by overruling Hastings, and that should not be done lightly.\n\n Second, whatever the initial reasons for keeping grand jury matters secret,\n\ncompare George Edwards, Jr., The Grand Jury 116 (1906) [Legal Classics Library\n\ned. 2003] (suggesting that the “original purpose [of grand jury secrecy] was that no\n\noffender should escape”), with Mark Kadish, Behind the Locked Doors of an\n\nAmerican Grand Jury: Its History, its Secrecy, and its Process, 24 Fl. St. U. L.\n\nRev. 1, 14 (1996) (explaining that the reasons for grand jury secrecy were varied,\n\nand included preventing the flight of suspected criminals, finding out whether\n\nwitnesses were biased, and ensuring freedom from judicial oversight), in the\n\nUnited States grand jury secrecy was not always seen as an absolute. In cases\n\ndecided before the enactment of the Federal Rules of Criminal Procedure, some\n\nfederal courts—including the Supreme Court—held (or at least said) that secrecy is\n\nnot required after an indictment is returned and the accused is in custody. “[A]fter\n\nthe grand jury’s functions are ended, disclosure is wholly proper where the ends of\n\njustice require it.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234\n\n(1940). Accord Metzler v. United States, 64 F.2d 203, 206 (9th Cir. 1933); Atwell\n\nv. United States, 162 F. 97, 99-100 (4th Cir. 1908); In re Grand Jury Proceedings,\n\n4 F. Supp. 283, 284-85 (E.D. Pa. 1933).\n\n\n 18\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 19 of 40\n\n\n If Rule 6(e) was meant to “continue[ ] the traditional practice of secrecy on\n\nthe part of members of the grand jury except when the court permits a disclosure,”\n\nRule 6(e), 1944 Advisory Committee Notes to Subdivision (e), there is a\n\nreasonable argument that Hastings and its progeny are at least consistent with\n\nhistorical practice. As we have said: “Although Rule 6(e)(3) enumerates the\n\nexceptions to the traditional rule of grand jury secrecy, the Supreme Court and this\n\nCourt have recognized that the district courts have inherent power beyond the\n\nliteral wording of Rule 6(e)(3) to disclose grand jury material and that Rule 6(e)(3)\n\nis but declaratory of that authority.” United States v. Aisenberg, 358 F.3d 1327,\n\n1347 (11th Cir. 2004). See also In re Request for Access to Grand Jury Materials,\n\n833 F.2d 1438, 1442 (11th Cir. 1987) (“As the considerations justifying secrecy\n\nbecome less relevant, the burden of showing the need for disclosure is lessened.”).\n\n Third, a survey of the relevant cases indicates that federal courts have been\n\nable to apply the test set forth in In re Craig, 131 F.3d at 106, without too much\n\ndifficulty in determining which matters of exceptional historical significance\n\nwarrant the disclosure of grand jury materials. See, e.g., In re Application to\n\nUnseal Dockets, 308 F. Supp. 3d 314, 326-35 (D.D.C. 2018); In re Nichter, 949 F.\n\nSupp. 2d 205, 212–14 (D.D.C. 2013). These courts have explained that\n\nexceptional historical significance, though a necessary element for disclosure, is\n\nitself not enough. Even if a matter or proceeding is historically significant to an\n\n\n 19\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 20 of 40\n\n\nexceptional degree, a court retains discretion to deny disclosure after balancing the\n\nrequisite factors. See, e.g., In re Nichter, 949 F.Supp.2d at 212-14.\n\n Fourth, and perhaps most importantly, a recent attempt to amend Rule 6(e)\n\nto permit the disclosure of grand jury records in cases of exceptional historical\n\nsignificance proved unsuccessful. The reason why this proposed amendment failed\n\nis insightful, and in my view counsels against revisiting Hastings at this time.\n\n In 2011, Attorney General Eric Holder recommended that Rule 6(e) be\n\namended to establish procedures for disclosing historically significant grand jury\n\nmaterials. See Letter from Attorney General Eric Holder to Judge Reena Raggi,\n\nChair of the Judicial Conference’s Advisory Committee on Criminal Rules, Oct.\n\n18, 2011 (attached). The Department of Justice questioned whether federal courts\n\nhad inherent authority to allow such disclosures given what it believed was Rule\n\n6(e)’s clear prohibition of disclosure of grand jury materials absent an express\n\nexception. See id. at 2-5. Attorney General Holder proposed that disclosure of\n\nhistorically significant grand jury materials be permitted, but only under new\n\nprocedures set forth in Rule 6(e) itself. The procedures suggested by the DOJ\n\nwould have required anyone seeking disclosure to show, among other things, that\n\nthe grand jury records in question have “exceptional” historical significance, that at\n\nleast 30 years have passed since the relevant case files associated with the grand\n\njury records were closed, that no living person would be materially prejudiced by\n\n\n 20\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 21 of 40\n\n\ndisclosure, and that disclosure would not impede any pending government\n\ninvestigation or prosecution. See id. at 8-9.\n\n The Judicial Conference’s Advisory Committee on Criminal Rules, then\n\nchaired by Second Circuit Judge Reena Raggi, reported in 2012 to the Committee\n\non Rules of Practice and Procedure that it believed that the DOJ’s proposed\n\namendment to Rule 6(e) was unnecessary. See Minutes of Meeting of June 11-12,\n\n2012, Judicial Conference Committee on Rules of Practice and Procedure, at 44\n\n(relevant pages attached). According to Judge Raggi, all members of a\n\nsubcommittee of the Advisory Committee on Criminal Rules—with the exception\n\nof the DOJ representative—recommended that the DOJ’s proposed amendment\n\n“not be pursued” because “in the rare cases where disclosure of historic materials\n\nhad been sought, the district [courts] acted reasonably in referring to their inherent\n\nauthority,” and as a result “there [wa]s no need for a rule on the subject.” Id.\n\n What happened (or, more accurately, did not happen) in 2012 is not, of\n\ncourse, dispositive. But it is instructive. If those charged with considering\n\namendments to the Federal Rules of Criminal Procedure believed in 2012 that\n\nfederal courts had properly relied on inherent authority to order the disclosure of\n\nhistorically significant grand jury materials, the case for overruling Hastings is\n\nlessened.\n\n\n\n\n 21\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 22 of 40\n\n\n ***\n\nWith these thoughts, I join the court’s opinion.\n\n\n\n\n 22\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 23 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 24 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 25 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 26 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 27 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 28 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 29 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 30 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 31 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 32 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 33 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 34 of 40\n\nCase: 17-15016 Date Filed: 02/11/2019 Page: 35 of 40\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 36 of 40", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367126/", "author_raw": "JORDAN, Circuit Judge, concurring"}, {"author": "GRAHAM, District Judge, dissenting", "type": "dissent", "text": "GRAHAM, District Judge, dissenting:\n The court creates an exception to the rule of grand jury secrecy, doing so on\n\nthe assertion that the rationale for secrecy erodes over time. The exception appears\n\nto be limited to matters fitting two main criteria: enough time has elapsed for the\n\nparties to the event to have died and enough present-day authority considers the\n\nevent to be of exceptional historical significance. The court states that the test for\n\nhistorical significance is objective but leaves the test open-ended. The court\n\nprovides little guidance for the analysis except to say that historical significance\n\nrequires more than an interested journalist, curious public or concerned friend or\n\nfamily member.\n\n I disagree with the majority on several fronts. I believe that judges should\n\nnot be so bold as to grant themselves the authority to decide that the historical\n\nsignificance exception should exist and what the criteria should be. I agree with\n\nthe dissent of Judge Sykes in Carlson v. United States, 837 F.3d 753, 767 (7th Cir.\n\n2016) (Sykes, J., dissenting), and would hold that Rule 6(e) of the Federal Rules of\n\nCriminal Procedure limits a district court’s authority to order the disclosure of\n\ngrand jury records. Rule 6(e)(3) codifies the policy choices made about which\n\nexceptions should be recognized. Nothing analogous to a historical significance\n\nexception can be found there.\n\n\n\n\n 23\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 37 of 40\n\n\n The court relies on Hastings to sanction a broader exercise of judicial power\n\nthan the decision’s narrow holding supports. Hastings permitted an exception to\n\ngrand jury secrecy for a judicial investigating committee. It found the situation to\n\nbe “closely akin” to the Rule 6(e)(3)(E)(i) exception for judicial proceedings. In re\n\nPetition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261, 1272\n\n(11th Cir. 1984). An exception for matters of historical significance bears no\n\nresemblance to an exception which applies “to assist in preparation or conduct of a\n\njudicial proceeding.” United States v. Baggot, 463 U.S. 476, 480, 103 S. Ct. 3164,\n\n3167 (1983).\n\n But even if a district court has inherent authority to order disclosure outside\n\nof Rule 6(e), I do not believe it should be exercised in this case. The rule of grand\n\njury secrecy serves many interests, including “assur[ing] that persons who are\n\naccused but exonerated by the grand jury will not be held up to public ridicule.”\n\nDouglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 219, 99 S. Ct. 1667,\n\n1673 (1979). This case presses the matter further, both in time and scope. Do\n\nsubsequent generations—the children, grandchildren and beyond—of not only the\n\nsuspects but also the grand jury witnesses and grand jurors themselves have\n\nreputational interests that warrant protection?\n\n Because “secrecy of the grand jury is sacrosanct,” United States v. Phillips,\n\n843 F.2d 438, 441 (11th Cir. 1988), and because disclosure of grand jury material\n\n\n 24\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 38 of 40\n\n\nis prohibited “except in the limited circumstances provided for in Rule 6(e)(3),”\n\nUnited States v. Aisenberg, 358 F.3d 1327, 1347 (11th Cir. 2004), the rule of\n\nsecrecy, as codified in Rule 6(e)(3), has always applied to protect the interests of\n\nsubsequent generations.\n\n Disclosure of grand jury records should not be permitted without an exacting\n\nreview which gives due weight to the privacy and reputational interests at stake. It\n\nis troubling that the court has authorized disclosure of the records without\n\nexamining their contents.1 It is troubling too that the government has elected not\n\nto contest the proposition that there is no interest to be served in continued secrecy.\n\n That an event has exceptional historical significance cuts both ways. With\n\nthe principal parties having passed away and the investigation gone cold, one\n\nmight conclude the matter is stale and the need for secrecy over. Yet, exceptional\n\nsignificance suggests a continued interest in, and impact from, the event. The\n\nMoore’s Ford Lynching played a part in the civil rights movement and interest\n\nremains very much alive, particularly among members of the community affected\n\nby the event. The depth of their interest is illustrated by the Moore’s Ford\n\nMemorial Committee, which has advocated for racial justice and held events\n\nmemorializing the victims over the past two decades. The Committee has placed\n\ngrave markers for the victims and a historical marker near the site of the lynching.\n\n\n 1\n The grand jury records were not made a part of the record before the court.\n 25\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 39 of 40\n\n\nA member of the Committee and a granddaughter of one the victims attended oral\n\nargument in this appeal. Community members organize an annual reenactment in\n\nhonor of the victims. They still search for justice.\n\n The vitality of the community’s continued interest raises possible\n\nrepercussions for the living descendants and relatives of those individuals whom\n\nthe grand jury records will identify as being suspects, witnesses and grand jurors.\n\nThe modern public rightly views the lynching and failure to indict as a horrific\n\ninjustice, and many perceive it to have been the work of the Ku Klux Klan. Would\n\nknowing that grand jury records could someday be disclosed and affect the\n\nstanding of a child or grandchild in the community deter a grand jury witness from\n\nfully telling the truth? Could the conduct of a witness or grand juror involved in an\n\nevent that is viewed at the time as momentous or sensational be influenced by a\n\nconcern for their own legacy among future generations?\n\n I would hold that the reputational interests protected by Rule 6(e) include\n\nthose of subsequent generations. I am unable to dismiss the reputational harm that\n\ncould occur to a living person if the grand jury transcripts reveal that their parent or\n\ngrandparent was a suspect, a witness who equivocated or was uncooperative, a\n\nmember of the grand jury which refused to indict, or a person whose name was\n\nidentified as a Klan member.\n\n\n\n\n 26\n\n Case: 17-15016 Date Filed: 02/11/2019 Page: 40 of 40\n\n\n Accordingly, I dissent and would reverse the district court’s order. At a\n\nminimum this court should provide protections to limit the harm its newly-created\n\nexception to grand jury secrecy could cause. The court should, for example,\n\ninstruct the district court on remand to examine the grand jury records, with the\n\nassistance of the government, and to protect discernible reputational interests by\n\ntaking measures such as redacting names and other identifying information.\n\n\n\n\n 27", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367126/", "author_raw": "GRAHAM, District Judge, dissenting"}]}	WILSON	JORDAN	GRAHAM	1	{"WILSON": ", Circuit", "JORDAN": ", Circuit", "GRAHAM": ", District"}	3	1	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589873/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,589,872	UNITED STATES of America, Plaintiff-Appellee, v. Henry Vazquez VALOIS, Luis Felipe Valencia, Diego Portocarrero Valencia, Defendants-Appellants.	United States v. Henry Vazquez Valois	2019-02-12	17-13535	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Jordan, Grant, Hull", "parties": "", "opinions": [{"author": "HULL, Circuit Judge:", "type": "010combined", "text": "Case: 17-13535 Date Filed: 02/12/2019 Page: 1 of 28\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13535\n ________________________\n\n D.C. Docket No. 4:16-cr-10052-JIC-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\n versus\n\nHENRY VAZQUEZ VALOIS,\nLUIS FELIPE VALENCIA,\nDIEGO PORTOCARRERO VALENCIA,\n\n Defendants-Appellants.\n\n ________________________\n\n Appeals from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (February 12, 2019)\n\nBefore JORDAN, GRANT, and HULL, Circuit Judges.\n\nHULL, Circuit Judge:\n\n Henry Vazquez Valois (“Vazquez”), Luis Felipe Valencia (“Valencia”), and\n\nDiego Portocarrero Valencia (“Portocarrero”) appeal their convictions and\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 2 of 28\n\n\nsentences for trafficking cocaine in international waters, in violation of the\n\nMaritime Drug Law Enforcement Act (“MDLEA”). See 46 U.S.C. §§ 70501–\n\n70508. Broadly speaking, they raise five issues on appeal. After review and with\n\nthe benefit of oral argument, we conclude that the defendants have shown no error,\n\nand we affirm their convictions and sentences. We address each issue in turn.\n\n I. MDLEA\n\n All three defendants challenge the district court’s exercise of extraterritorial\n\njurisdiction under the MDLEA. 1 Collectively, they argue that the MDLEA is\n\nunconstitutional for four reasons: (1) Congress’s authority to define and punish\n\nfelonies on the high seas does not extend to felonies without any connection to the\n\nUnited States; (2) due process prohibits the prosecution of foreign nationals for\n\noffenses that lack a nexus to the United States; (3) the MDLEA violates the Fifth\n\nand Sixth Amendments by removing the determination of jurisdictional facts from\n\nthe jury; and (4) the admission of a certification of the Secretary of State to\n\nestablish extraterritorial jurisdiction violates the Confrontation Clause.\n\n As the defendants concede, each of these arguments is foreclosed by binding\n\nprecedent. Regarding the defendants’ first argument, in United States v. Campbell,\n\nwe held that the MDLEA is a valid exercise of Congress’s power under the\n\n\n 1\n We review de novo a district court’s interpretation of a statute. United States v.\nCruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016). Likewise, we review de novo whether a\nstatute is constitutional. Id.\n 2\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 3 of 28\n\n\nFelonies Clause as applied to offenses without a nexus to the United States. 743\n\nF.3d 802, 810 (11th Cir. 2014); see also United States v. Cruickshank, 837 F.3d\n\n1182, 1187-88 (11th Cir. 2016) (following Campbell and reaching the same\n\nholding). In Campbell, we recognized that we have upheld extraterritorial\n\nconvictions under our drug trafficking laws as an exercise of power under the\n\nFelonies Clause. 743 F.3d at 810.\n\n As to the defendants’ second contention, in United States v. Rendon, we held\n\nthat the Due Process Clause of the Fifth Amendment does not prohibit the trial and\n\nconviction of aliens captured on the high seas while drug trafficking because the\n\nMDLEA provides clear notice that all nations prohibit and condemn drug\n\ntrafficking aboard stateless vessels on the high seas. 354 F.3d 1320, 1326 (11th\n\nCir. 2003). The defendants’ MDLEA convictions do not violate their due process\n\nrights even if the offenses lack a nexus to the United States. Campbell, 743 F.3d at\n\n812.\n\n Concerning the defendants’ third argument, in United States v. Tinoco, we\n\nheld that the MDLEA jurisdictional requirement goes to the subject-matter\n\njurisdiction of courts and is not an essential element of the MDLEA substantive\n\noffense, and, therefore, it does not have to be submitted to the jury for proof\n\nbeyond a reasonable doubt. 304 F.3d 1088, 1109-12 (11th Cir. 2002); see also\n\nCruickshank, 837 F.3d at 1192 (following Tinoco and reaching the same holding);\n\n\n 3\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 4 of 28\n\n\nCampbell, 743 F.3d at 809 (following Tinoco and Rendon and reaching the same\n\nholding); Rendon, 354 F.3d at 1326-28 (following Tinoco and reaching the same\n\nholding).\n\n As to the defendants’ fourth argument, in Campbell, we held that the\n\nintroduction of a certification of the Secretary of State to establish extraterritorial\n\njurisdiction under the MDLEA does not violate the Confrontation Clause. 743\n\nF.3d at 806-08; see Cruickshank, 837 F.3d at 1192 (“A United States Department\n\nof State certification of jurisdiction under the MDLEA does not implicate the\n\nConfrontation Clause because it does not affect the guilt or innocence of a\n\ndefendant.”). In Campbell, we determined that because the stateless nature of the\n\ndefendant’s vessel was not an element of his MDLEA offense to be proved at trial,\n\nthe admission of the certification did not violate his right to confront the witnesses\n\nagainst him. 743 F.3d at 806.\n\n Based on our precedent, the district court properly exercised jurisdiction in\n\nthis case.\n\n II. MOTION FOR MISTRIAL\n\n Next, defendant Valencia argues that the district court abused its discretion\n\nwhen it denied a motion for a mistrial based on the government’s reference in\n\n\n\n\n 4\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 5 of 28\n\n\nclosing arguments to a separate drug seizure. 2 Vazquez and Portocarrero adopt\n\nthis argument.\n\n A.\n\n We begin by summarizing the evidentiary context for the prosecutor’s\n\ncomments. Over a 36-hour period in November 2016, the U.S. Coast Guard Cutter\n\nDependable interdicted two separate go-fast vessels, each with three individuals\n\nonboard, trafficking cocaine in international waters off the coasts of Panama and\n\nCosta Rica. The first vessel was seized overnight on November 23 to November\n\n24. The Coast Guard recovered 16 bales of cocaine from the water after the\n\nindividuals on the first vessel had jettisoned the bales. This group of individuals\n\nwas indicted and prosecuted for this drug trip independently from this case.\n\n The three defendants in this case were on a second vessel seized during the\n\nday on November 25, about 36 hours after the first vessel was seized. The\n\ndefendants in this group were the only individuals charged in this indictment. At\n\ntrial, Valencia tried to sow doubt about whether he, Vazquez, and Portocarrero\n\nwere trafficking cocaine onboard their vessel. There was testimony at trial that on\n\nNovember 25 the defendants here had jettisoned 16 bales of cocaine, which the\n\nCoast Guard retrieved from the water. By the time the Coast Guard got to the\n\n\n\n 2\n We review for abuse of discretion the denial of a motion for a mistrial. United States v.\nMcGarity, 669 F.3d 1218, 1232 (11th Cir. 2012).\n 5\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 6 of 28\n\n\ndefendants’ vessel, no cocaine was found onboard the vessel itself. Valencia\n\ntherefore attempted to show that the Coast Guard mistakenly attributed the cocaine\n\nfrom the first seizure to the defendants in this case.\n\n To that end, Valencia’s defense counsel, over the government’s objections,\n\nrepeatedly cross-examined government witnesses about the prior seizure that had\n\nhappened 36 hours earlier. The government objected on relevance grounds and\n\nbecause the questions were beyond the scope of direct examination. Vazquez and\n\nPortocarrero did not object to this line of questioning from Valencia’s defense\n\ncounsel, and the district court overruled the government’s objections.\n\n More specifically, on cross-examination, Valencia’s defense counsel asked\n\none government witness about how close in time the prior seizure was, whether he\n\nwas patrolling in the same area, whether individuals were detained, how many\n\npackages were retrieved, and whether and when the packages were tested for\n\ncocaine. The witness answered that he was involved in another operation with a\n\ngo-fast boat overnight on November 23 to November 24, approximately 24 to 36\n\nhours before interdicting the defendants’ vessel. He stated that the prior seizure\n\noccurred in the same area in the Eastern Pacific that he was patrolling and that he\n\nhad detained individuals. He stated that there were no drugs on the earlier vessel\n\nbecause the vessel was sinking when the Coast Guard approached. He answered\n\n\n\n\n 6\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 7 of 28\n\n\nthat the Coast Guard retrieved 16 bales from the water in the earlier case, and he\n\ntested those bales for cocaine on November 24 and 26.\n\n Valencia’s defense counsel also asked another government witness whether\n\nhe personally was able to find the debris field of packages from the prior seizure on\n\nNovember 23 to November 24. The witness answered that he personally was not\n\nable to find the debris field, but that the Coast Guard did find the debris field in the\n\nvicinity of where the individuals on the earlier vessel jettisoned the bales. The\n\nwitness also stated that he saw at least one individual jettisoning the bales off the\n\ndefendants’ vessel in this case.\n\n Valencia’s defense counsel asked another government witness whether the\n\npackages from the prior seizure were packaged similarly to those from this case\n\nand whether 16 packages were recovered from each seizure. The witness answered\n\nthat the bales from the earlier seizure looked very similar and had similar\n\nmulticolored packaging to the bales in this case. He stated that there were 16 bales\n\nrecovered from the earlier seizure on November 23 to November 24 and another 16\n\nbales recovered on November 25 as part of the second seizure.\n\n On redirect, the prosecutor invariably tried to make clear that the witnesses\n\nwere not mistaken that the cocaine retrieved from the water on November 25 had\n\ncome from the defendants’ vessel in this case.\n\n\n\n\n 7\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 8 of 28\n\n\n Notably, in addition to not objecting to the cross-examination by Valencia’s\n\ndefense counsel, Vazquez’s defense strategy aligned with Valencia’s in that\n\nVazquez denied having any cocaine on his boat. Specifically, at trial, Vazquez\n\ntestified in his defense that he owned the go-fast vessel and that he had hired\n\nValencia and Portocarrero to help him flee Colombia to escape death threats from\n\nindividuals who had demanded he pay a “tax” on the boat. Vazquez testified that\n\nthere was never any cocaine on his vessel and that he did not transport cocaine. In\n\nother words, the cocaine found in the water came from the first vessel seized.\n\n With this evidentiary context in mind and Valencia’s interjection of the first\n\nvessel into evidence in the trial, we now turn to the prosecutor’s comments in\n\nclosing arguments. Responding to Vazquez’s testimony, the prosecutor referenced\n\nthe prior seizure and suggested that both go-fast vessels were part of a “concerted\n\neffort” that was “being directed by whoever was orchestrating these deliveries to\n\nCentral America.” The prosecutor asserted that the defendants’ vessel “followed\n\nthe exact same procedures as that first boat had done,” including attempting to\n\nelude the Coast Guard, jettisoning the cargo, and then scuttling the vessel. These\n\nactivities, according to the prosecutor, showed that the defendants “were following\n\nthe instructions of the people who hired them and directed their activities,” just like\n\nthe individuals on the other vessel. The prosecutor also argued that the 640\n\n\n\n\n 8\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 9 of 28\n\n\nkilograms of cocaine recovered from the water by the Coast Guard came from the\n\ndefendants’ vessel and not from the prior seizure the night before. 3\n\n During the prosecutor’s argument, defense counsel for Valencia reserved a\n\nmotion and, once the prosecutor concluded, moved for a mistrial outside of the\n\npresence of the jury. Valencia argued that the government appeared to be trying to\n\ntie the defendants to a broader conspiracy and to hold them accountable for the\n\nfirst drug seizure. Defense counsel for Vazquez and Portocarrero did not explicitly\n\nobject to the prosecutor’s comments or join in Valencia’s mistrial motion on the\n\nrecord. However, Vazquez’s defense counsel did assist Valencia’s defense counsel\n\nwith the argument on the motion.\n\n As to Valencia’s mistrial argument, the prosecutor responded that he was\n\nsimply trying to place the other seizure—which Valencia “interjected into this\n\ntrial” and made “a primary feature of his defense”—in context of the overall\n\nscheme.\n\n After hearing from the parties, the district court found that “an appropriate\n\ncurative instruction would ameliorate any potential harm to any defendant” and\n\nthat none of the defendants “ha[d] been deprived [of] their right to a fair and\n\nimpartial trial.” Valencia’s counsel conferred with the other defense counsel and\n\n\n\n\n 3\n The 16 bales totaled 640 kilograms of cocaine.\n 9\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 10 of 28\n\n\nprepared a curative instruction. The prosecutor did not object to the instruction.\n\nThe district court then read the curative instruction to the jury as follows:\n\n During the trial you heard evidence of acts allegedly done by other\n individuals on other occasions that may be similar to acts with which\n the defendants are currently charged. You must not consider any of this\n evidence to decide whether the defendants engaged in the activity\n alleged in the indictment.\n\n After the prosecutor’s closing argument and the district court’s curative\n\ninstruction, defense counsel gave their closing arguments. Vazquez’s defense\n\ncounsel argued that the Coast Guard did not see the first bale in the water thrown\n\noff the defendants’ boat, but the Coast Guard immediately attributed it to the\n\ndefendants’ boat. Vazquez’s counsel contended that the Coast Guard did not have\n\nany video showing any of the 16 bales of cocaine being thrown off the defendants’\n\nboat. Vazquez’s counsel argued that just because the Coast Guard recovered 640\n\nkilograms of cocaine and Vazquez’s boat was in the proximity of where the\n\ncocaine was recovered did not put that cocaine on Vazquez’s boat or mean that the\n\ncocaine was his.\n\n Portocarrero’s defense counsel argued that as soon as the Coast Guard saw a\n\nbale in the water, the Coast Guard claimed that the defendants were jettisoning the\n\nbales from their boat and that the bales belonged to the defendants, even though\n\nmany of the witnesses did not see bales being tossed off the defendants’ boat and\n\nthe video did not record any jettisoning of bales. Portocarrero’s counsel argued\n\n\n 10\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 11 of 28\n\n\nthat the conflicting evidence and lack of details in the case showed without a doubt\n\nthat nobody was throwing bales off the defendants’ boat. Specifically, he argued\n\nthat the Coast Guard could not state how many bales they saw jettisoned off the\n\ndefendants’ boat or who was jettisoning the bales, even though the bales were\n\nbrightly colored. Portocarrero’s counsel also contended that the physical evidence\n\nshowed that the debris field of bales did not trail the defendants’ boat. Also, he\n\nargued that there was no evidence the defendants had cocaine in their boat, as there\n\nwas nothing on their boat that could be connected to the cocaine found in the\n\nwater. Portocarrero’s counsel argued that if there was cocaine on the defendants’\n\nboat, there would have been evidence of it.\n\n In turn, Valencia’s defense counsel argued that the jury could consider that\n\nthe government witnesses who he questioned about the prior seizure became\n\ndefensive or unhappy when he asked them about the prior seizure. Valencia’s\n\ncounsel also argued about the similarities between the prior seizure and the instant\n\ncase, including that 16 bales were also recovered from the prior seizure and they\n\nhad the same packaging as those in this case. Valencia’s counsel argued that the\n\nboat from the prior seizure could have carried 16 bales of cocaine, but the boat in\n\nthis case would have been over maximum load. He argued that the boat from the\n\nprior seizure could have carried and jettisoned all 32 bales of cocaine, including\n\nthe 16 bales mistakenly attributed to the defendants. He contended that there was\n\n\n 11\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 12 of 28\n\n\nreasonable doubt that Valencia, Vazquez, and Portocarrero were transporting 16\n\nbales of cocaine. Once again, Vazquez’s and Portocarrero’s counsel did not object\n\nto the argument of Valencia’s counsel that the cocaine in the water came from the\n\nfirst vessel, not the defendants’ boat.\n\n In the prosecutor’s rebuttal argument, the prosecutor argued that the\n\ngovernment witnesses testified that they did not confuse what happened with the\n\nprior seizure with the instant case.\n\n B.\n\n The defendants assert that the prosecutor’s reference to the earlier seizure\n\namounted to the introduction of improper evidence under Federal Rule of Evidence\n\n404(b), for which no notice had been given. We disagree. For starters,\n\n“statements and arguments of counsel are not evidence.” United States v. Lopez,\n\n590 F.3d 1238, 1256 (11th Cir. 2009) (quotations omitted). More importantly, it\n\nwas Valencia who interjected the prior seizure, which involved other individuals,\n\ninto the trial as part of his defense. Neither Vazquez nor Portocarrero objected to\n\nValencia’s introduction of evidence about the prior seizure. Indeed, it was only the\n\ngovernment that opposed that effort. Because this evidence was not introduced by\n\nthe government and did not concern a prior bad act by any of the defendants, Rule\n\n404(b) and its notice requirements did not apply.\n\n\n\n\n 12\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 13 of 28\n\n\n To the extent the defendants argue more generally that the prosecutor’s\n\ncomments in closing were improper suggestions that the two seizures were\n\nconnected, they must prove two things: (1) that the remarks were improper; and\n\n(2) that the remarks prejudicially affected their substantial rights. United States v.\n\nReeves, 742 F.3d 487, 505 (11th Cir. 2014). The prosecutor understandably\n\ndesired to refute Vazquez’s story of no cocaine on his boat and to respond to the\n\nconsiderable testimony Valencia elicited regarding the details of the other seizure\n\nand how similarly the cocaine was packaged. Moreover, the prosecutor had\n\nobjected to the defendants presenting evidence about the prior seizure, but the\n\ndistrict court had allowed the evidence, which showed that 16 bales of cocaine\n\nsimilarly packaged had been seized 36 hours earlier. While one possible inference\n\nwas that the second 16 cocaine bales seized came from the first boat, another\n\npossible inference, as the prosecutor argued, was the two vessels were doing the\n\nsame activity in the same way and were connected. Given the way the trial\n\nproceeded, we cannot say the prosecutor’s brief comments in closing were\n\nimproper.\n\n Even if we assume arguendo that the prosecutor’s comments were somehow\n\nimproper, the defendants have not proved prejudice to their substantial rights. The\n\ndistrict court cured the complained-of remarks through a clear and specific limiting\n\ninstruction to the jury. See Lopez, 590 F.3d at 1256 (“If the district court takes a\n\n\n 13\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 14 of 28\n\n\ncurative measure, we will reverse only if the evidence is so prejudicial as to be\n\nincurable by that measure.”). The court told the jury that it could not consider the\n\nevidence of the other drug seizure when deciding whether the defendants engaged\n\nin the activity of the second vessel alleged in the indictment. “We presume that the\n\njury followed the district court’s curative instructions.” Id. And the defendants\n\n“ha[ve] not come close to establishing that the closing argument was so highly\n\nprejudicial as to be incurable by the court’s instructions.” Reeves, 742 F.3d at 506.\n\nTherefore, the district court did not abuse its discretion by denying the defendants’\n\nmotion for mistrial.\n\n III. CONFLICT OF INTEREST\n\n The third issue, raised by defendant Portocarrero, likewise concerns the two\n\nseizures. As noted above, the two groups of three defendants were prosecuted\n\nindependently. A total of three attorneys were appointed for the six defendants,\n\nwith each attorney representing one defendant within each group. 4 Portocarrero\n\nargues that this defense arrangement violated his Sixth Amendment right to\n\nconflict-free counsel because he did not validly waive the conflict and the conflict\n\nharmed his defense. Portocarrero says that the conflict prevented his attorney from\n\n\n\n\n 4\n Attorney Juan Gonzalez represented Portocarrero in this case and a defendant in the\nother drug case. Attorney Stewart Abrams represented Vazquez in this case and a defendant in\nthe other drug case. Attorney Martin Feigenbaum represented Valencia in this case and a\ndefendant in the other drug case.\n 14\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 15 of 28\n\n\nattempting to shift blame to the other group of defendants arrested overnight on\n\nNovember 23 to 24 for the cocaine found in the water on November 25. Vazquez\n\nadopts this argument, but Valencia does not raise this claim.\n\n A defendant’s right to effective assistance of counsel is violated when the\n\ndefendant’s attorney has an actual conflict of interest that impacts the defendant\n\nadversely. United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993). A\n\ndefendant, however, may in some circumstances waive his right to conflict-free\n\ncounsel. United States v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975).5 Garcia\n\nprovides that, in the case of a potential conflict of interest, the court should conduct\n\nan inquiry, akin to the plea colloquy under Federal Rule of Criminal Procedure 11,\n\nto determine whether a defendant wishes to waive the conflict. Id. at 277–78. A\n\ndefendant may waive an actual conflict of interest if the waiver is “knowing,\n\nintelligent, and voluntary.” United States v. Ross, 33 F.3d 1507, 1524 (11th Cir.\n\n1994).\n\n However, a district court’s failure to comply with Garcia will not require\n\nreversal absent an actual conflict of interest. United States v. Mers, 701 F.2d 1321,\n\n1326 (11th Cir. 1983) (holding that a district court’s violation of Garcia and\n\nFederal Rule of Criminal Procedure 44(c) was harmless error because there was no\n\n\n\n 5\n This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,\n1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).\n 15\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 16 of 28\n\n\nactual conflict). “Although joint representation of multiple defendants creates a\n\ndanger of counsel conflict of interest, the mere fact of joint representation will\n\ncertainly not show an actual conflict.” Id. (quotation marks omitted). Rather, an\n\nappellant must demonstrate inconsistent interests and show that the attorney chose\n\nbetween courses of action that were “helpful to one client but harmful to the\n\nother.” Id. at 1328 (quotation marks omitted). Actual conflicts must have a basis\n\nin fact; hypothetical conflicts are not enough. Id.\n\n Here, at the time defense counsel were initially appointed, the government\n\nhad separately indicted and was prosecuting the seizures of two different go-fast\n\nvessels on different days as two independent cases against three different\n\nindividuals in each case. No party or counsel has pointed to any place in the record\n\nbefore trial where anyone alleged or mentioned that the cocaine found in the water\n\non November 25 came from the boat seizure overnight on November 23 to 24.\n\nRather, all of the testimony until Valencia’s counsel cross-examined the\n\ngovernment’s witnesses at trial was that the Coast Guard had seen that cocaine\n\nbeing thrown from the defendants’ boat on November 25.\n\n The issue of a potential conflict did not arise until the testimony during the\n\ntrial. Thus, we cannot say the district court was required to hold a Garcia hearing\n\nbefore the trial began. And before sentencing the district court did hold a Garcia\n\nhearing.\n\n\n 16\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 17 of 28\n\n\n Even if the Garcia hearing was timely enough, Portocarrero and Vazquez\n\nargue that it was substantively deficient. Although they expressly waived any\n\npotential conflict at the Garcia hearing, they allege that the district court did not\n\nask all of the questions it should have. We need not reach that issue because\n\nPortocarrero and Vazquez have not shown that their attorneys’ dual representation\n\nof the two groups presented any actual conflict. Despite the prosecutor’s brief\n\nreference to a broader conspiracy during closing arguments, the government’s case\n\nagainst Portocarrero and Vazquez related solely to their own personal acts of\n\ntransporting cocaine onboard the vessel on which they were found. They were not\n\nbeing tried jointly with or for the same offenses as their attorneys’ other clients on\n\nthe first vessel. Shifting the blame in Portocarrero’s and Vazquez’s trial to the first\n\nvessel would not have been harmful to Portocarrero and Vazquez, or to the\n\ndefendants on the first vessel who were being tried separately. In fact, as\n\nPortocarrero notes, Valencia’s attorney attempted to do just that, despite\n\nrepresenting a client in the other group of defendants on the first vessel.\n\n Furthermore, Portocarrero’s and Vazquez’s counsel did not object when\n\nValencia’s counsel cross-examined the government witnesses about the similarity\n\nof the cocaine packaging and other features of the first and second boat seizures.\n\nIn fact, Vazquez’s and Portocarrero’s defense counsel later did implicitly shift the\n\nblame to the other clients on the first vessel during their closing arguments.\n\n\n 17\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 18 of 28\n\n\nVazquez argued that just because the Coast Guard recovered 640 kilograms of\n\ncocaine and Vazquez’s boat was in the proximity of where the cocaine was\n\nrecovered did not put that cocaine on Vazquez’s boat or mean that it belonged to\n\nhim. Portocarrero’s counsel argued that nobody was throwing bales off of their\n\nboat and there was no evidence that they had cocaine in their boat when the Coast\n\nGuard boarded it. Under the particular circumstances here, neither Portocarrero\n\nnor Vazquez have demonstrated that there was an actual conflict of interest, and,\n\nthus, no reversal is required.6 See Mers, 701 F.2d at 1326.\n\n IV. SAFETY-VALVE ISSUES\n\n As to the fourth issue, Valencia challenges the constitutionality of the\n\n“safety-valve” provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Valencia\n\nsays that these provisions both unfairly deny benefits to Title 46 defendants, in\n\n\n\n 6\n Portocarrero and Vazquez abandoned any argument that an actual conflict existed\nrelating to any post-trial issues and proceedings. See United States v. Jernigan, 341 F.3d 1273,\n1283 n.8 (11th Cir. 2003). In any case, there has been no suggestion that Portocarrero or\nVazquez knew the other group of defendants or were interested in cooperating with the\ngovernment against them. Additionally, before sentencing, the district court held a Garcia\nhearing; because there is no claim in this appeal that the three defendants’ waivers given for\npost-trial issues were deficient, we do not evaluate that Garcia hearing.\n Although affirming in this case, we observe that, in an abundance of caution, the more\ncareful course next time would likely be for the magistrate judge to consider appointing separate\ncounsel for all defendants on each boat where (1) the two go-fast boats with cocaine are\ninterdicted so close in time and geography and (2) two indictments, although separate, were filed\non the same day. A conflict could have arisen here if a defendant on one boat decided to\ncooperate with the government and testify against the defendants on the other boat. See Ruffin v.\nKemp, 767 F.2d 748, 749-51 (11th Cir. 1985) (concluding an actual conflict of interest existed\nwhere the attorney represented both defendants Ruffin and Brown and actually offered the\ntestimony of Brown against Ruffin in exchange for a lesser penalty for Brown).\n 18\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 19 of 28\n\n\nviolation of equal-protection guarantees, and violate the Fifth Amendment by\n\nrequiring a defendant to forfeit his right to silence. Portocarrero adopts these\n\narguments.7\n\n When the safety valve applies, the district court may impose a sentence\n\nwithout regard to the statutory minimum sentences that would otherwise limit the\n\ncourt’s discretion. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). By its plain terms,\n\nthe safety valve applies only to convictions under five specified statutes: 21\n\nU.S.C. §§ 841, 844, 846, 960, and 963. United States v. Pertuz-Pertuz, 679 F.3d\n\n1327, 1328 (11th Cir. 2012). This Court held in Pertuz-Pertuz that, because no\n\nTitle 46 offense appears in the safety valve, defendants convicted under Title 46\n\nare not eligible for safety-valve relief. Id. Therefore, defendants convicted of\n\noffenses under the MDLEA, which are Title 46 offenses, are not eligible for\n\nsafety-valve relief. See id. at 1328–29. Thus, as a threshold matter, Valencia and\n\nPortocarrero are not eligible for safety-valve relief.\n\n As to their equal-protection claim, Valencia and Portocarrero argue that\n\nthere is no rational basis to exclude Title 46 defendants from the safety valve when\n\nit is available to defendants convicted of drug trafficking within the United States.\n\n\n\n 7\n We ordinarily review de novo the constitutionality of a statute, because it presents a\nquestion of law, but we review for plain error where a defendant raises his constitutional\nchallenge for the first time on appeal. United States v. Wright, 607 F.3d 708, 715 (11th Cir.\n2010). The parties debate what was raised in the district court, but we need not decide that issue\nbecause the defendants’ constitutional claims fail in any event.\n 19\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 20 of 28\n\n\nHowever, this Court recently held that the safety valve’s exclusion of Title 46\n\ndefendants does not violate the equal-protection guarantee of the Fifth\n\nAmendment. United States v. Castillo, 899 F.3d 1208 (11th Cir.), cert. denied,\n\n2019 WL 113114 (Jan. 7, 2019). Applying rational-basis review, we concluded\n\nthat Congress had “legitimate reasons to craft strict sentences for violations of the\n\n[MDLEA].” Id. at 1213. Specifically, “[i]n contrast with domestic drug offenses,\n\ninternational drug trafficking raises pressing concerns about foreign relations and\n\nglobal obligations.” Id. “Moreover, the inherent difficulties of policing drug\n\ntrafficking on the vast expanses of international waters suggest that Congress could\n\nhave rationally concluded that harsh penalties are needed to deter would-be\n\noffenders.” Id. Thus, based on Castillo, we reject Valencia’s and Portocarrero’s\n\nequal-protection challenge to the safety valve.\n\n Valencia and Portocarrero also contend that the safety valve violates Fifth\n\nAmendment protections against self-incrimination by requiring defendants to\n\nprovide the government with all information and evidence that they have\n\nconcerning the offense. 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). They\n\nnote that, while they were not eligible to be sentenced below the mandatory\n\nminimum, see Pertuz-Pertuz, 679 F.3d at 1328, they could have received a\n\ntwo-level reduction in their offense level for meeting the five safety-valve criteria.\n\nSee U.S.S.G. § 2D1.1(b)(17) (2016).\n\n\n 20\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 21 of 28\n\n\n Although this Court has not addressed in a published opinion this Fifth\n\nAmendment issue as to the safety valve, we have concluded that U.S.S.G. § 3E1.1,\n\nthe acceptance-of-responsibility provision of the Guidelines, does not violate the\n\nFifth Amendment right against self-incrimination. United States v. Henry, 883\n\nF.2d 1010, 1011 (11th Cir. 1989). “Section 3E1.1(a) is not a punishment; rather,\n\nthe reduction for acceptance of responsibility is a reward for those defendants who\n\nexpress genuine remorse for their criminal conduct.” United States v. Carroll, 6\n\nF.3d 735, 740 (11th Cir. 1993). Several of our sister circuits have concluded that\n\nthe same is true for the safety valve in 18 U.S.C. § 3553(f) and U.S.S.G.\n\n§ 5C1.2(a). United States v. Cruz, 156 F.3d 366, 374 (2d Cir. 1998) (conviction\n\nunder § 841); United States v. Warren, 338 F.3d 258, 266-67 (3d Cir. 2003)\n\n(conviction under § 846); United States v. Washman, 128 F.3d 1305, 1307 (9th Cir.\n\n1997) (conviction under § 841); United States v. Arrington, 73 F.3d 144, 149-50\n\n(7th Cir. 1996) (same).\n\n Although the parties briefed the Fifth Amendment issue, we ultimately do\n\nnot need to address it given our conclusions above that the safety-valve relief is\n\nunavailable to all Title 46 MDLEA defendants, such as Valencia and Portocarrero,\n\nand that such unavailability does not violate the Equal Protection Clause and is\n\nconstitutional. Because Valencia and Portocarrero are not eligible for safety-valve\n\nrelief in the first place, we need not consider whether these defendants otherwise\n\n\n 21\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 22 of 28\n\n\nmeet the substantive requirements of safety-valve relief or the defendants’\n\nconstitutional claim based on the Fifth Amendment.\n\n V. MINOR-ROLE REDUCTION\n\n Finally, Vazquez argues that at sentencing the district court erred in denying\n\nhim a minor-role reduction under U.S.S.G. § 3B1.2(b).8 Valencia and Portocarrero\n\npurport to adopt this argument. 9 Unlike § 3553(f) and § 5C1.2(a), MDLEA\n\noffenders may seek a minor-role reduction under § 3B1.2(b).\n\n As background, Vazquez’s, Portocarrero’s, and Valencia’s presentence\n\ninvestigation reports (“PSI”) assigned each of them a base offense level of 38,\n\npursuant to U.S.S.G. § 2D1.1(a)(5) and (c)(1), because their offenses involved at\n\nleast 450 kilograms of cocaine, specifically 640 kilograms of cocaine.\n\n Vazquez received a two-point enhancement under § 2D1.1(b)(3)(C) because\n\nhe was the captain of the vessel and a two-point enhancement for obstruction of\n\njustice under § 3C1.1 because he made a series of statements during trial that\n\ncontradicted the evidence. As a result, Vazquez received a total offense level of\n\n\n\n 8\n We review a district court’s denial of a role reduction for clear error. Cruickshank, 837\nF.3d at 1192.\n 9\n The government maintains that these adoptions were ineffective because minor-role\nreductions are too individualized to be raised by adoption. Cf. United States v. Cooper, 203 F.3d\n1279, 1285 n.4 (11th Cir. 2000) (stating that sufficiency arguments are too individualized to be\ngenerally adopted). Valencia’s and Portocarrero’s general adoptions are likely inadequate to\nproperly raise the issue on appeal, but we need not address that issue because they lack merit in\nany event.\n 22\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 23 of 28\n\n\n42. Portocarrero and Valencia received no enhancements or reductions, and their\n\ntotal offense level remained at 38.\n\n Each defendant received zero criminal history points, placing each of them\n\nin criminal history category I. As to Vazquez, with a total offense level of 42 and a\n\ncriminal history category of I, he had an advisory guideline range of 360 months to\n\nlife imprisonment. As to Portocarrero and Valencia, with a total offense level of\n\n38 and a criminal history category of I, each had an advisory guideline range of\n\n235 to 293 months’ imprisonment. All three defendants also faced a statutory\n\nminimum term of ten years’ imprisonment as to their counts.\n\n Each defendant objected to his PSI, arguing that he was entitled to a\n\nminor-role reduction. Specifically, Vazquez contended that there was no evidence\n\nthat he had any ownership interest in the drugs, any decision-making authority, or\n\nany role other than transportation. Portocarrero argued that he was not the owner\n\nor master of the vessel, was a last-minute addition to the trip, and was the youngest\n\nand most inexperienced of the three men on the boat. Valencia asserted that there\n\nwas no evidence that he had any ownership interest in the cocaine or that he was\n\ngoing to make any money from it.\n\n At the defendants’ sentencing hearings, each of them renewed the objection\n\nto the lack of a minor-role reduction. Vazquez reiterated that he did not own the\n\ndrugs or share in the drugs’ profits. He contended that he did not participate in\n\n\n 23\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 24 of 28\n\n\nplanning or organizing the criminal activity or exercise decision-making authority,\n\nas he merely provided transportation for the drugs. Portocarrero asserted that he\n\nwas only 20 years old and was a very small part of the operation.\n\n The district court overruled the defendants’ objections to the lack of a\n\nminor-role reduction because each defendant failed to establish that he was\n\nsubstantially less culpable than the average participant in the offense.\n\n After overruling the objections, the district court determined that Vazquez’s\n\noffense level was 42, his criminal history category was I, and his advisory\n\nguideline range was 360 months to life imprisonment. After hearing arguments\n\nand considering the 18 U.S.C. § 3553(a) factors, the district court sentenced\n\nVazquez to 144 months’ imprisonment as to both of his counts, to run\n\nconcurrently, followed by 5 years’ supervised release. The district court noted that\n\nVazquez’s punishment should be slightly greater than his codefendants based on\n\nhis enhancements for being captain of the vessel and obstruction of justice.\n\n The district court determined that Portocarrero’s and Valencia’s total offense\n\nlevel was 38, their criminal history category was I, and their advisory guideline\n\nrange was 235 to 293 months’ imprisonment. Following arguments from the\n\nparties, the court sentenced both Portocarrero and Valencia to 120 months’\n\nimprisonment as to both counts, to run concurrently, followed by 5 years’\n\nsupervised release.\n\n\n 24\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 25 of 28\n\n\n As to our review of a district court’s denial of a role reduction, we will not\n\ndisturb a district court’s findings unless we are left with a definite and firm\n\nconviction that a mistake has been made. Cruickshank, 837 F.3d at 1192. The\n\ncourt’s choice between two permissible views of the evidence will rarely constitute\n\nclear error, so long as the basis of the trial court’s decision is supported by the\n\nrecord and the court did not misapply a rule of law. Id. “The defendant bears the\n\nburden of establishing his minor role in the offense by a preponderance of the\n\nevidence.” Id.\n\n Under § 3B1.2(b), a defendant is entitled to a two-level decrease in his\n\noffense level if he was a minor participant in the criminal activity. U.S.S.G\n\n§ 3B1.2(b). A minor participant is one “who is less culpable than most other\n\nparticipants in the criminal activity, but whose role could not be described as\n\nminimal.” Id. § 3B1.2, cmt. n.5.\n\n When evaluating a defendant’s role in the offense, the district court must\n\nconsider the totality of the circumstances. Id. § 3B1.2, cmt. n.3(C). According to\n\n§ 3B1.2’s commentary, the factors courts should consider include “the degree to\n\nwhich the defendant understood the scope and structure of the criminal activity,”\n\n“the degree to which the defendant participated in planning or organizing the\n\ncriminal activity,” “the degree to which the defendant exercised decision-making\n\nauthority,” “the nature and extent of the defendant’s participation in the\n\n\n 25\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 26 of 28\n\n\ncommission of the criminal activity,” and “the degree to which the defendant stood\n\nto benefit from the criminal activity.” Id. The court must consider all of these\n\nfactors to the extent applicable, and it commits “legal error in making a minor role\n\ndecision based solely on one factor.” United States v. Presendieu, 880 F.3d 1228,\n\n1249 (11th Cir. 2018).\n\n In United States v. De Varon, we established two principles to “guide the\n\ndetermination of whether a defendant played a minor role in the criminal scheme:\n\n(1) ‘the defendant’s role in the relevant conduct for which [he] has been held\n\naccountable at sentencing,’ and (2) ‘[his] role as compared to that of other\n\nparticipants in [his] relevant conduct.’” Presendieu, 880 F.3d at 1249 (quoting\n\nUnited States v. De Varon, 175 F.3d 930, 940 (11th Cir. 1999) (en banc)). “In\n\nmaking the ultimate finding as to role in the offense, the district court should look\n\nto each of these principles and measure the discernable facts against them.” De\n\nVaron, 175 F.3d at 945.\n\n Here, the district court did not clearly err in denying the defendants’ requests\n\nfor a minor-role reduction. Under De Varon’s first principle, the inquiry is\n\nwhether the defendant “played a relatively minor role in the conduct for which [he]\n\nhas already been held accountable—not a minor role in any larger criminal\n\nconspiracy.” Id. at 944. The record shows that all three defendants knowingly\n\nparticipated in the illegal transportation of a large quantity of cocaine, they were\n\n\n 26\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 27 of 28\n\n\nimportant to that scheme, and they were held responsible only for that conduct.\n\nSee U.S.S.G. § 3B1.2, cmt. n.3(C); De Varon, 175 F.3d at 941-43; see also United\n\nStates v. Monzo, 852 F.3d 1343, 1347 (11th Cir. 2017) (considering, as part of the\n\ntotality of the circumstances, the facts that the defendant “was responsible only for\n\nhis direct role in the conspiracy, and that he was important to the scheme”). While\n\nthese facts do not render the defendants ineligible, they support the court’s denial\n\nof the role reduction.\n\n Further, under De Varon’s second principle, the record supports the district\n\ncourt’s finding that none of the defendants were “less culpable than most other\n\nparticipants in the criminal activity.” U.S.S.G. § 3B1.2, cmt. n.5. Vazquez was\n\nthe most culpable of the three defendants because he was the master of the vessel\n\nand, according to his own testimony, he recruited Valencia and Portocarrero to\n\naccompany him. While Valencia and Portocarrero appear to have had less of a role\n\nthan Vazquez, that fact alone does not make them minor participants. “The fact\n\nthat a defendant’s role may be less than that of other participants engaged in the\n\nrelevant conduct may not be dispositive of role in the offense, since it is possible\n\nthat none are minor or minimal participants.” De Varon, 175 F.3d at 944. And the\n\ndefendants here failed to show how they were less culpable than “most other\n\nparticipants” in the criminal activity. See U.S.S.G. § 3B1.2, cmt. n.5. Based on\n\n\n\n\n 27\n\f Case: 17-13535 Date Filed: 02/12/2019 Page: 28 of 28\n\n\nthe totality of the circumstances, the district court did not clearly err in denying the\n\ndefendants minor-role reductions under § 3B1.2.\n\n Alternatively and as an independent ground for affirmance as to Valencia\n\nand Portocarrero, we note that both Valencia and Portocarrero received a\n\nsubstantial sentencing variance from their advisory guideline range of 235 to 293\n\nmonths’ imprisonment to 120 months. The sentencing court did not just\n\nmechanically impose the statutory mandatory minimum but did so only after\n\nconsidering the defendants’ request for a variance. Nonetheless, 120 months is the\n\nstatutory mandatory minimum. See 21 U.S.C. § 960(b)(1)(B) and 46 U.S.C.\n\n§ 70506(a). Thus, any error in the guidelines calculation was harmless as both\n\nValencia and Portocarrero received the statutory mandatory minimum sentence and\n\nthe district court could not have sentenced them to less. See United States v.\n\nWestry, 524 F.3d 1198, 1221-22 (11th Cir. 2008) (finding no error in district\n\ncourt’s application of firearm enhancement and then concluding, in any event, any\n\nerror in guidelines calculation was harmless where application of enhancement did\n\nnot affect defendants’ overall sentences).\n\n VI. CONCLUSION\n\n For the reasons stated, we reject the defendants’ challenges and affirm their\n\nconvictions and total sentences.\n\n AFFIRMED.\n\n\n 28", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367125/", "author_raw": "HULL, Circuit Judge:"}]}	JORDAN	GRANT	HULL	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4589872/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,590,421	HILLCREST PROPERTY, LLP, Plaintiff - Appellee, v. PASCO COUNTY, Defendant - Appellant.	Hillcrest Property, LLP v. Pasco County	2019-02-13	17-14789	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Tjoflat, Marcus, Newsom", "parties": "", "opinions": [{"type": "010combined", "text": "Case: 17-14789 Date Filed: 02/13/2019 Page: 1 of 44\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14789\n ________________________\n\n D.C. Docket No. 8:10-cv-00819-SDM-TBM\n\n\n\nHILLCREST PROPERTY, LLP,\n\n Plaintiff - Appellee,\n\n versus\n\nPASCO COUNTY,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (February 13, 2019)\n\nBefore TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.\n\nTJOFLAT, Circuit Judge:\n\n The question before us is whether a litigant in this Circuit has a substantive-\n\ndue-process claim under the Due Process Clause of the Fourteenth Amendment\n\nwhen the alleged conduct is the unlawful application of a land-use ordinance. The\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 2 of 44\n\n\nanswer to that question is a resounding “no”—an answer that this Court delivered\n\nin McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), 24 years ago and\n\nhas reaffirmed ever since. We held in McKinney that executive action never gives\n\nrise to a substantive-due-process claim unless it infringes on a fundamental right.\n\nA land-use decision is classic executive, rather than legislative, action—action that,\n\nat least here, does not implicate a fundamental right under the Constitution.\n\n I.\n\n We start by reviewing the ordinance at issue. We then discuss the\n\napplication of that ordinance to Plaintiff Hillcrest Property and the specific events\n\nthat give rise to this appeal.\n\n A.\n\n Pasco County (“the County”) passed Ordinance No. 11-15 (“the Ordinance”)\n\n“to preserve, protect, and provide for the dedication and/or acquisition of right-of-\n\nway and transportation corridors that are necessary to provide future transportation\n\nfacilities and facility improvements to meet the needs of [projected] growth.” 1\n\nPasco County, Fla., Land Development Code ch. 900, § 901.2(A)(2). The County\n\nfound that “provision of an adequate transportation network is an essential public\n\n\n\n 1\n A transportation corridor is “part of a network of transportation facilities and systems\nwhich provide mobility between and access to businesses, homes, and other land uses throughout\nthe jurisdiction, region, and State.” Pasco County, Fla., Land Development Code ch. 900,\n§ 901.2(A)(2).\n\n 2\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 3 of 44\n\n\nservice.” Id. § 901.2(A)(2). The Ordinance aimed “to protect transportation\n\ncorridors from encroachment by structures or other development except under\n\nspecial conditions.” Id. § 901.2(A)(6). It applies to all development of land that is\n\nlocated on the County’s corridor-preservation map. Id. § 901.2(B)(1).\n\n The corridor-preservation map includes all of the land that the County\n\nbelieves will be required to adequately provide transportation, regardless of who\n\ncurrently owns the land. When an entity seeks a development permit for land that\n\nadjoins a transportation corridor, the County, as a “condition of approval,”\n\ncapitalizes on that need by requiring a right-of-way dedication, which is a\n\ndedication by the entity to the County of lands “within the development site or\n\nexpanded development site which are within the transportation corridor.” Id.\n\n§ 901.2(H)(1). The dedications must be “in accordance with the County Real\n\nEstate Division requirements and free and clear of all liens and encumbrances.” Id.\n\nImportantly, the land to be dedicated is “limited to the amount of land needed for\n\nthe planned transportation improvements.” 2 Id.\n\n The Ordinance contemplates that disputes might arise between the entity and\n\nthe County and provides for waiver and appeal. An entity that believes that the\n\n\n\n 2\n The amount of land needed is determined by the “Metropolitan Planning Organization\nand Comprehensive Plan transportation element plans in effect at the time of dedication,” or if no\nplans exist, by the “County-approved traffic study and collector/arterial spacing and design\nstandards for the development approval or development permit/order.” Id.\n\n 3\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 4 of 44\n\n\nCounty’s demanded dedication “exceeds the amount of land that is roughly\n\nproportional to the transportation impacts to be generated by the proposed\n\ndevelopment site” may apply to the development review committee for a\n\n“dedication waiver.” Id. The procedures for seeking a waiver are largely the same\n\nas those for seeking a variance. 3 Id. ch. 900, § 901.2(I)(2)(a). In its application for\n\na waiver, the entity must include the appraised value of the development site and\n\nexpanded development site, both before and after approval of the development; 4 a\n\ntraffic-impact study; and a list of transportation-mitigation measures taken or\n\nrequired to be taken. Id.\n\n The committee, upon finding that the “transportation requirement is not\n\nroughly proportional to the transportation impacts of the proposed development\n\nsite or expanded development site” or that “any portion of the land required to be\n\ndedicated . . . exceeds the amount of land that is roughly proportional to the\n\n\n\n 3\n A variance is “limited relief” when “strict application” of the County’s code would\n“create an unnecessary hardship” or would “render the land difficult to use because of some rare\nand unique physical attribute of the property itself or some other factor unique to the property for\nwhich the variance is requested.” Id. ch. 400, § 407.2(A)(1).\n 4\n The development site is the “total area of the lot, tract, or parcel which is the subject of\nan application for a Development Permit.” Id. § 901.2(D)(2). The expanded development site is\n all development, parcels of land, lots, and tracts, including development, parcels\n of land, lots, and tracts contiguous to or nearby the development site that are (1)\n developed by the same or a related developer or landowner; or (2) developed as\n part of the same zoning plan, preliminary plan, preliminary site plan, plat, or other\n unified or common plan or development.\nId. § 901.2(D)(3).\n\n 4\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 5 of 44\n\n\ntransportation impacts of the proposed development site or expanded development\n\nsite,” may proceed in one of two ways. Id. § 901.2(I)(4). One, it can authorize\n\ncompensation for the excess land. Id. Two, if it elects not to authorize\n\ncompensation, it must not require the entity to dedicate the excess land and must\n\npermit it to use that land subject only to other generally applicable zoning\n\nrestrictions. Id.; see also id. § 901.2(I)(6).\n\n The entity may appeal the committee’s decision to the Board of County\n\nCommissioners. Id. § 901.2(I)(2)(a).\n\n And this brings us to Hillcrest.\n\n B.\n\n Hillcrest Property owns 16.5 acres of undeveloped, commercially zoned land\n\nin Pasco County, Florida.\n\n In December 2006, Hillcrest applied to the County to develop its property\n\nwith a 83,000 square-foot retail shopping center and three commercial spaces. Just\n\nover one year later, in February 2007, the County notified Hillcrest that pursuant to\n\nthe Ordinance, it would require the dedication of 50 feet for the future\n\ndevelopment of State Road 52 (“the Road”) into four lanes. 5 The property at issue\n\nshares a 1,400-foot border with the Road. Just a few months later, in May, the\n\n\n\n 5\n As Hillcrest points out, however, the Comprehensive Plan designated the road and the\nsurrounding property as having an “acceptable level of roadway service” without the dedication.\n\n 5\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 6 of 44\n\n\nCounty then advised Hillcrest that a proposed shift in the Road by the Florida\n\nDepartment of Transportation (“FDOT”) would require a dedication of an\n\nadditional 90 feet, bringing the total to 140 feet. The County was to compensate\n\nHillcrest for these additional 90 feet.\n\n In July 2007, Hillcrest submitted a different proposed site plan that had no\n\nimprovement inside the 140-foot area. In so doing, Hillcrest reserved its rights to\n\nobject to the dedication of any land without compensation. The County approved\n\nthe preliminary site plan that August.\n\n In June 2008, after having denied at least three of Hillcrest’s construction\n\nplans for the site, the County approved a construction plan but conditioned\n\napproval upon reaching an agreement on the dedication. Thereafter, the Magistrate\n\nJudge tells us, things get hazy. What is clear is that Hillcrest and the County\n\ncontinued to disagree on matters related to the dedication. And in January 2010,\n\nthe County supposedly told Hillcrest that it lacked the ability to compensate\n\nHillcrest the amount that it sought in compensation.\n\n Hillcrest did not apply for a waiver or take any action in state court.\n\n This suit ensued. Later in 2010, Hillcrest filed a seventeen-count complaint\n\nin the District Court, as amended, alleging violations of both state and federal law.\n\nThe federal causes of action included claims under the Takings Clause of the Fifth\n\n\n\n\n 6\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 7 of 44\n\n\nAmendment, as incorporated by the Fourteenth Amendment, and facial and as-\n\napplied substantive-due-process claims under the Fourteenth Amendment. 6\n\n The crux of Hillcrest’s substantive-due-process claim is that the County\n\nrequired the dedication “without . . . having first made an individualized\n\ndetermination that the exaction was reasonably related both in nature and extent to\n\nthe traffic impacts of the proposed development,” “without . . . having clearly\n\ndemonstrated a reasonable connection or rational nexus between the need to 4-lane\n\n[the Road] and the traffic generated by the development and between the exaction\n\nand the benefits accruing to the development,” and\n\n without . . . having first demonstrated that the need to widen [the\n Road] to 4-lanes is substantial and demonstrably clear and present,\n such that it definitely appears that Hillcrest’s proposed development\n either forthwith or in the demonstrably immediate future will so\n overburden [the Road] as to require its accelerated improvement, or\n that the 4-laning of [the Road] is contemplated by the County or\n FDOT for immediate improvement.\n\n In July 2011, the parties filed cross motions for partial summary judgment\n\non numerous claims. These included motions by Hillcrest on the facial\n\nsubstantive-due-process claim and the County on the as-applied claim. The\n\n\n\n 6\n Teaser: the only claim that remains, the only claim at issue here, is an as-applied claim\nthat the Ordinance violates substantive due process, as guaranteed by the Fourteenth\nAmendment.\n The remaining counts have otherwise been resolved. The District Court dismissed some\nand declined to exercise supplemental jurisdiction over others. The remainder were dismissed\nwith prejudice pursuant to a partial settlement agreement entered into by Hillcrest.\n\n 7\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 8 of 44\n\n\nMagistrate Judge, in March 2012 and upon referral from the District Court, issued\n\na report recommending that the Court grant both motions.\n\n Just over one year later, in April 2013, the District Court granted summary\n\njudgment for Hillcrest on the facial claim but denied summary judgment on the as-\n\napplied claim (thus declining to follow the Magistrate Judge’s recommendation).\n\nPursuant to that decision, the Court permanently enjoined the County from\n\nenforcing the portions of the Ordinance that are in dispute here.\n\n The County appealed. A panel of this Court held that Hillcrest’s facial\n\nsubstantive-due-process claim, which was the basis for the District Court’s\n\njudgment, was barred by the statute of limitations. Hillcrest Prop., LLC v. Pasco\n\nCounty, 754 F.3d 1279, 1283 (11th Cir. 2014). We accordingly vacated the\n\nDistrict Court’s order but expressed “no view as to the merits of Hillcrest’s\n\npending as-applied substantive due process claim.” Id.\n\n The litigation continued. In April 2016, the parties filed cross-motions for\n\nsummary judgment on Hillcrest’s as-applied substantive-due-process claim. Then,\n\nabout a year and a half later, the District Court—riding on the back of the\n\nMagistrate Judge’s March 2012 Report and Recommendation—granted Hillcrest’s\n\nmotion. Hillcrest Prop., LLP v. Pasco County, No. 8:10-CV-819-T-23TBM, 2017\n\nWL 4342347, at 1 (M.D. Fla. Sept. 29, 2017).\n\n\n\n\n 8\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 9 of 44\n\n\n The District Court summarily concluded that “application of a facially\n\nunconstitutional ordinance necessarily establishes a meritorious as-applied due-\n\nprocess claim.” Id. at 2. The Court entered an award of $1 in nominal damages\n\nin favor of Hillcrest—the only relief that Hillcrest had sought on this claim. Id.\n\n Importantly, the District Court also allowed Hillcrest to move for attorneys’\n\nfees. Id. Indeed, as counsel acknowledged at oral argument, this case is currently\n\nabout nothing but attorneys’ fees. Let us explain. In January 2014, before this\n\nCourt issued its decision in the first appeal, the parties to this case, in addition to\n\nthe FDOT, entered into a partial settlement agreement. In exchange for a 100-foot\n\nstrip of Hillcrest’s property, the County and the FDOT would together compensate\n\nHillcrest $4.7 million. Hillcrest, pursuant to the agreement, forfeited nearly all of\n\nits claims against the County, including its takings claim, but expressly reserved its\n\nas-applied substantive-due-process claim. As this litigation has stretched nearly\n\nnine years, we can only imagine that the fees Hillcrest seeks to collect are\n\nsignificant.\n\n This second appeal ensued.\n\n Because the Court still faces a case or controversy within the meaning of\n\nArticle III, even if the controversy is only over attorneys’ fees, the parties have\n\nproperly invoked our jurisdiction. As such, we must decide the one claim that\n\nlingers and put this case to rest.\n\n\n 9\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 10 of 44\n\n\n II.\n\n We review de novo a district court’s grant of a motion for summary\n\njudgement, “viewing all of the facts in the record in the light most favorable to the\n\nnon-movant.” United States ex rel. Phalp v. Lincare Holdings, Inc., 857 F.3d\n\n1148, 1153 (11th Cir. 2017) (quoting Haynes v. McCalla Raymer, LLC, 793 F.3d\n\n1246, 1249 (11th Cir. 2015)). We affirm upon a showing that there is “‘no genuine\n\ndispute as to any material fact’ such that ‘the movant is entitled to judgment as a\n\nmatter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).\n\n III.\n\n The Due Process Clause of the Fourteenth Amendment provides, “No state\n\nshall . . . deprive any person of life, liberty, or property, without due process of\n\nlaw.” U.S. Const. amend. XIV, § 1.\n\n The Clause “extends beyond the command of fair procedures” and\n\ncomprises a “substantive component as well.” County of Sacramento v. Lewis, 523\n\nU.S. 833, 856, 118 S. Ct. 1708, 1721 (1998) (Kennedy, J., concurring). As we\n\ndescribe below, substantive due process has two strands—one that protects against\n\ndeprivation of fundamental rights and one that protects against arbitrary legislation.\n\nNeither strand offers Hillcrest relief here.\n\n A.\n\n\n\n\n 10\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 11 of 44\n\n\n The Due Process Clause protects “fundamental rights found to be deeply\n\nrooted in our legal tradition,” Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.\n\nCt. 2258, 2268 (1997), “that is, rights that are ‘implicit in the concept of ordered\n\nliberty,’” McKinney, 20 F.3d at 1556 (quoting Palko v. Connecticut, 302 U.S. 319,\n\n325, 58 S. Ct. 149, 152 (1937)). Absent a “compelling state interest” and an\n\ninfringement “narrowly tailored” to serve that interest, the government may not\n\nviolate those rights “at all, no matter what process is provided.” Glucksberg, 521\n\nU.S. at 721, 117 S. Ct. at 2268 (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.\n\nCt. 1439, 1447 (1993)). These rights include “most—but not all—of the rights\n\nenumerated in the Bill of Rights” and “certain unenumerated rights (for instance,\n\nthe penumbral right of privacy[)].” McKinney, 20 F.3d at 1556.\n\n Hillcrest does not allege denial of any fundamental right. As we made clear\n\nin McKinney, fundamental rights in the constitutional sense do not include “state-\n\ncreated rights.” 7 Id. at 1560. McKinney applies to Hillcrest’s land-use claim that\n\nis the subject of this suit. We explained in DeKalb Stone, Inc. v. County of\n\nDeKalb, 106 F.3d 956 (11th Cir. 1997) (per curiam), that “land use rights, as\n\n\n\n 7\n The McKinney plaintiff had been a “full-time permanent employee” of the state who\nwas subsequently terminated. Id. at 1554. He alleged that his termination was “pretextual,” that\nhe was terminated “without reason,” and thus that his termination “violated his ‘constitutional\nemployment rights’ and consequently denied him substantive due process of law.” Id. at 1555.\nWe held that “[b]ecause employment rights are state-created rights and are not ‘fundamental’\nrights created by the Constitution, they do not enjoy substantive due process protection.” Id. at\n1560.\n 11\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 12 of 44\n\n\nproperty rights generally, are state-created rights.” Id. at 959; see also Greenbriar\n\nVill., L.L.C. v. City of Mountain Brook, 345 F.3d 1258, 1263 (11th Cir. 2003) (per\n\ncuriam) (noting that “state-created rights . . . include land-use rights”). Under\n\ncircuit precedent, then, this seems to be an open-and-shut case.\n\n Hillcrest seeks to evade McKinney and its progeny, however, by\n\ndistinguishing between “old property,” which substantive due process supposedly\n\nprotects, and “new property,” which it does not.8 The problem, of course, aside\n\nfrom the fact that DeKalb Stone and Greenbriar Village foreclose the argument\n\naltogether, is that neither the Supreme Court nor this Court draws a distinction\n\nbetween old property and new property.\n\n In Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972), the\n\nSupreme Court observed, “Property interests, of course, are not created by the\n\nConstitution. Rather they are created and their dimensions are defined by existing\n\nrules or understandings that stem from an independent source such as state law.”\n\n\n 8\n For readers unfamiliar with the concept of “new property,” see generally Charles A.\nReich, The New Property, 73 Yale L.J. 733 (1964). The core idea is that in a society “built\naround entitlement,” Goldberg v. Kelly, 397 U.S. 254, 262 n.8, 90 S. Ct. 1011, 1017 n.8 (quoting\nCharles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale\nL.J. 1245, 1255 (1965) [hereinafter Social Welfare]), it is more appropriate “to regard welfare\nentitlements as more like ‘property’ than a ‘gratuity,’” id. A classic example of new property is\ngovernment employment, which was the right at issue in Roth and McKinney. Other examples\nare “subsidies to farmers and businessmen, routes for airlines and channels for television\nstations; long term contracts for defense, space, and education; social security pensions for\nindividuals.” Goldberg, 397 U.S. at 262 n.8, 90 S. Ct. at 1017 n.8 (quoting Reich, Social\nWelfare, supra, at 1255).\n\n 12\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 13 of 44\n\n\nId. at 577, 92 S. Ct. at 2709; see also Barnhill v. Johnson, 503 U.S. 393, 398, 112\n\nS. Ct. 1386, 1389 (1992) (“In the absence of any controlling federal law, ‘property’\n\nand ‘interests in property’ are creatures of state law.”). Not only do Roth and its\n\nprogeny say nothing to limit the Roth principle to new property, but the Court has\n\nextended the principle to old property on many occasions.9\n\n Hillcrest also brings to our attention two decisions of the Supreme Court that\n\nit believes supports its argument that land-use rights are fundamental rights:\n\nKoontz v. St. Johns River Water Management District, 570 U.S. 595, 133 S. Ct.\n\n2586 (2013), and Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113\n\n(1972). Neither is apposite.\n\n We start with Koontz, the case of more recent vintage. The unconstitutional-\n\nconditions doctrine, which was Koontz’s focus, “vindicates the Constitution’s\n\nenumerated rights by preventing the government from coercing people into giving\n\nthem up.” 570 U.S. at 604, 133 S. Ct. at 2594 (emphasis added). There, the\n\ngovernment would approve the plaintiff’s construction permit “only if” he agreed\n\n\n\n 9\n For examples, see Phillips v. Wash. Legal Found., 524 U.S. 156, 164, 118 S. Ct. 1925,\n1930 (1998) (principal in lawyer trust account); Delaware v. New York, 507 U.S. 490, 503, 113\nS. Ct. 1550, 1558 (1993) (escheat claims); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029,\n112 S. Ct. 2886, 2900 (1992) (lake bed); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003–04,\n104 S. Ct. 2862, 2872 (1984) (trade secrets); Parratt v. Taylor, 451 U.S. 527, 529 n.1, 101 S. Ct.\n1908, 1910 n.1 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.\nCt. 662 (1986) (hobby materials); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,\n160, 101 S. Ct. 446, 450 (1980) (principal in court registry); Memphis Light, Gas & Water Div.\nv. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 1560 (1978) (creditor rights).\n\n 13\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 14 of 44\n\n\nto various concessions. Id. at 601, 133 S. Ct. at 2593. He declined. Id. at 602, 133\n\nS. Ct. at 2593. There was, of course, no takings claim because “[w]here the permit\n\nis denied and the condition is never imposed, nothing has been taken.” Id. at 608,\n\n133 S. Ct. at 2597. But the problem is obvious: “[b]y conditioning a building\n\npermit on the owner’s deeding over a public right-of-way, for example, the\n\ngovernment can pressure an owner into voluntarily giving up property for which\n\nthe Fifth Amendment would otherwise require just compensation.” Id. at 605, 133\n\nS. Ct. at 2594. The “unconstitutional conditions doctrine prohibits” “[e]xtortionate\n\ndemands of this sort” because they “frustrate the Fifth Amendment right to just\n\ncompensation.” Id. at 605, 133 S. Ct. at 2595.\n\n Koontz makes clear that an unconstitutional-conditions claim is its own\n\nconstitutional cause of action that is “predicated” on some other enumerated\n\nconstitutional right—in Koontz’s case “predicated on the Takings Clause.” Id. at\n\n610, 133 S. Ct. at 2597.\n\n Koontz thus does no work for Hillcrest here. Hillcrest did not assert an\n\nenumerated right allegedly infringed by an unconstitutional condition; it sued\n\nunder substantive due process, which is unenumerated. Indeed, because the right is\n\nunenumerated, the “guideposts for responsible decisionmaking in this unchartered\n\narea are scarce and open-ended.” Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267\n\n(quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061,\n\n\n 14\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 15 of 44\n\n\n1068 (1992)). For precisely that reason, the Court has instructed us, pursuant to\n\n“judicial self-restraint,” to “exercise the utmost care whenever we are asked to\n\nbreak new ground in this field.” Collins, 503 U.S. at 125, 112 S. Ct. at 1068. In\n\nshort, Koontz does not apply to substantive due process, as it does to the Takings\n\nClause or to other enumerated constitutional rights.\n\n We now turn to Hillcrest’s other precedent.\n\n Lynch, for its part, states only that the “[a]cquisition, enjoyment, and\n\nalienation of property” constitute “basic civil rights.” 405 U.S. at 544, 92 S. Ct. at\n\n1118. As we explained in DeKalb Stone, however, though “property rights have\n\nbeen important common law rights throughout history,” “common law rights are\n\nnot equivalent to fundamental rights, which are created only by the Constitution\n\nitself.” 106 F.3d at 959 n.6. It is telling, moreover, that the “basic civil rights”\n\nreferenced in Lynch stem not from the Constitution but from the Civil Rights Act\n\nof 1866. 405 U.S. at 543–44, 92 S. Ct. at 1117–18. So Lynch, too, fails to bridge\n\nthe gap between land-use rights and substantive due process.\n\n B.\n\n There is a second strand to substantive due process, one on which Hillcrest\n\nhangs its case.\n\n When “state-created rights are infringed by a ‘legislative act,’ the\n\nsubstantive component of the Due Process Clause generally protects that person\n\n\n 15\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 16 of 44\n\n\nfrom arbitrary and irrational government action.” Kentner v. City of Sanibel, 750\n\nF.3d 1274, 1279−80 (11th Cir. 2014) (quoting Lewis v. Brown, 409 F.3d 1271,\n\n1273 (11th Cir. 2005) (per curiam)); see also Palko, 302 U.S. at 327, 58 S. Ct. at\n\n153 (“[T]he legislative judgment, if oppressive and arbitrary, may be overridden by\n\nthe courts.”).\n\n But not all state action is legislative. In McKinney, we emphasized the\n\n“crucial . . . distinction between ‘legislative’ acts and ‘non-legislative’ or\n\n‘executive’ acts.” 20 F.3d at 1557 n.9 (citation omitted). Whereas legislative acts\n\n“generally apply to a larger segment of—if not all of—society,” executive acts\n\n“characteristically apply to a limited number of persons (and often to only one\n\nperson).” Id. Examples of the former are “laws and broad-ranging executive\n\nregulations”; examples of the latter are “ministerial or administrative activities of\n\nmembers of the executive branch.”10 Id.\n\n Hillcrest’s assertion that this Court recognizes a substantive-due-process\n\nright that “protects essential rights in real property from arbitrary, capricious and\n\nunreasonable land use regulation” fails to appreciate the McKinney distinction.\n\nHillcrest, seeking to overcome the distinction, cites Village of Arlington Heights v.\n\n\n 10\n Hillcrest argues that this language is dicta because “McKinney was decided on the basis\nthat Ms. McKinney’s employment rights were state-created and therefore not protected by\nsubstantive due process.” Hillcrest is wrong: McKinney required us to draw this distinction\nbecause substantive due process does prohibit arbitrary legislative action, even if that action is\ndeprivation of a state-created right.\n\n 16\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 17 of 44\n\n\nMetropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555 (1977),\n\nwhich alluded to the “right to be free of arbitrary or irrational zoning actions,” id.\n\nat 263, 97 S. Ct. at 562. But this snippet does not advance Hillcrest’s position.\n\nFirst, the cited language is pure dicta; Arlington Heights, as every law student\n\nlearns, concerns equal protection, not substantive due process. Indeed, the Court—\n\nin the very next sentence—explained that the “heart of this litigation,” id. at 263,\n\n97 S. Ct. at 562, was the plaintiff’s equal-protection claim, which served as the\n\nbasis for the Court’s analysis. See id. Second, the Court’s citations for the quoted\n\nlanguage are to police-power cases, each of which involved challenges to\n\nlegislation, not to executive action. See Village of Euclid v. Ambler Realty Co.,\n\n272 U.S. 365, 384, 47 S. Ct. 114, 117 (1926) (ordinance); Nectow v. City of\n\nCambridge, 277 U.S. 183, 185, 48 S. Ct. 447, 447 (1928) (same); Village of Belle\n\nTerre v. Boraas, 416 U.S. 1, 3, 94 S. Ct. 1536, 1538 (1974) (same). 11 Arlington\n\n\n\n 11\n Washington ex rel. Seattle Title & Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct. 50\n(1928), another decision of the Supreme Court that Hillcrest flags, is yet another police-power\ncase. The Court applied the rule that “[l]egislatures may not, under the guise of the police power\nimpose restrictions that are unnecessary and unreasonable upon the use of private property or the\npursuit of useful activities.” 278 U.S. at 121, 49 S. Ct. at 52. Put differently, legislation, to be\nlegitimate, must “bear a substantial relation to the public health, safety, morals, or general\nwelfare.” Id. at 121, 49 S. Ct. at 51–52 (quoting Nectow, 277 U.S. at 188, 48 S. Ct. at 448).\n Hillcrest cites a single line within the opinion: “The right of the trustee to devote its land\nto any legitimate use is property within the protection of the Constitution.” Id. at 121, 49 S. Ct.\nat 52. But that language has no significance here when the entire paragraph is devoted to\ndiscussing whether the enactment at issue accords with the police power. See id. (evaluating the\nconstitutionality of the statute in light of “public health, safety, morals or general welfare” and\nthe “public interest”).\n\n 17\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 18 of 44\n\n\nHeights thus tells us nothing about Hillcrest’s claim here—a substantive-due-\n\nprocess violation for allegedly arbitrary executive action. 12\n\n In short, the McKinney distinction between legislative and executive action\n\nis alive and well and as we explain below, fatal to Hillcrest’s substantive-due-\n\nprocess claim in this case. First, the nature of the pleadings reveals that Hillcrest\n\nchallenges the application of the Ordinance, not anything inherent in its design. As\n\nsuch, the County’s actions are characterized as executive, not legislative. Second,\n\nand relatedly, Hillcrest pleads an as-applied violation of substantive due process.\n\nBut as-applied violations are always executive because the executive is responsible\n\nfor applying, or enforcing, the law. 13\n\n 1.\n\n\n\n\n 12\n Hillcrest also proffers six decisions of this Circuit that purportedly identify a\nfundamental right to use property in a particular manner. Of the six cases, three pre-date\nMcKinney. See Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374 (11th Cir. 1994); Corn v.\nCity of Lauderdale Lakes, 997 F.2d 1369 (11th Cir. 1993); Eide v. Sarasota County, 908 F.2d\n716 (11th Cir. 1990). We thus do not discuss these cases at all. The remaining three cases\ninvolved substantive-due-process challenges to legislative acts. See New Port Largo, Inc. v.\nMonroe County, 95 F.3d 1084, 1091 (11th Cir. 1996) (reasoning that the zoning decision at issue\nwas a “legislative judgment[]”); Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 (11th\nCir. 1995) (evaluating under a two-part test whether the “legislation” at issue could have served a\nlegitimate purpose and whether the “legislation” could have furthered that purpose). Though the\nRestigouche plaintiff brought an as-applied substantive-due-process challenge, 59 F.3d at 1211,\nwe made clear that we only “assumed arguendo some sort of vested right,” id. at 1215 n.7. So\ntoo in Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610 (11th Cir. 1997), where we\nassumed that the challenge was to a “legislative rather than an executive act.” Id. at 614.\n 13\n To be clear, nothing about our holding limits a person’s ability to bring an as-applied\nsubstantive-due-process challenge to executive action that infringes on fundamental rights. We\ntoday speak only about state-created rights.\n\n 18\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 19 of 44\n\n\n The deprivation alleged in this case is quintessentially executive action, as\n\nour prior land-use cases reveal.\n\n In Lewis v. Brown, 409 F.3d 1271 (11th Cir. 2005) (per curiam), for\n\nexample, a family had purchased property that was zoned for agricultural use. Id.\n\nat 1272. After purchasing it, the family applied to rezone the property for\n\nresidential use, use that would have been “consistent with the County’s land-use\n\nplan.” Id. The government denied the family’s application. Id. The family\n\nsubsequently brought a substantive-due-process claim and alleged, as does\n\nHillcrest here, that the decision was “arbitrary and capricious.” Id. We affirmed\n\nthe District Court’s grant of the motion to dismiss for failure to state a claim. Id. at\n\n1274. We reasoned that the decision was a “textbook ‘executive act’” given that\n\nthe action affected “only a limited class of persons, namely, the [plaintiffs].” Id. at\n\n1273.\n\n So too here. The whole of Hillcrest’s challenge, as alleged in their Amended\n\nComplaint, is that the County “has applied [the Ordinance] . . . so as to require\n\nHillcrest to set aside or dedicate a substantial portion of the [p]roperty for the\n\nbenefit of the public for future use as a right of way.” Said in McKinney-speak, the\n\nharm that allegedly results from the County’s action is harm only to Hillcrest.\n\n Hillcrest argues that the County’s action here was “legislative or quasi-\n\nlegislative in nature.” It cites Kelo v. City of New London, 545 U.S. 469, 125 S. Ct.\n\n\n 19\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 20 of 44\n\n\n2655 (2005), which reasoned that in the context of eminent domain, “[o]nce the\n\nquestion of the public purpose has been decided, the amount and character of land\n\nto be taken for the project and the need for a particular tract to complete the\n\nintegrated plan rests in the discretion of the legislative branch.” Id. at 489, 125 S.\n\nCt. at 2668 (quoting Berman v. Parker, 348 U.S. 26, 35–36, 75 S. Ct. 98, 104\n\n(1954)). But Kelo only strengthens the decision that we today lay down. There,\n\nthe city had passed a “development plan” that was intended to “revitalize an\n\neconomically distressed city.” 14 Id. at 472, 125 S. Ct. at 2658. The Court\n\nexplained that the “takings . . . would be executed pursuant to a ‘carefully\n\nconsidered’ development plan.” Id. at 478, 125 S. Ct. at 2661 (citation omitted)\n\n(emphasis added). What Hillcrest fails to grasp is that the development plan in\n\nKelo, like the Ordinance here, was legislative, but the application of that plan, like\n\nthe application of the Ordinance here to Hillcrest, was executive.15\n\n 2.\n\n\n 14\n The plan, which obtained “state-level approval,” was created by a “private nonprofit\nentity established some years earlier to assist the [c]ity in planning economic development.” Id.\nat 473, 125 S. Ct. at 2659. The petitioner argued that the condemnation of her home violated the\n“‘public use’ restriction in the Fifth Amendment.” Id. at 475, 125 S. Ct. at 2660.\n 15\n The same problem plagues the other cases that Hillcrest brings to our attention. The\nSupreme Court in Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S. Ct. 689 (1923), noted\nthat the “necessity and expediency of the taking . . . are legislative questions, no matter who may\nbe charged with their decision.” Id. at 709, 43 S. Ct. at 693 (quoting Bragg v. Weaver, 251 U.S.\n57, 58, 40 S. Ct. 62, 63 (1919)). These cases involved the legislative authorization to take, not\nthe taking itself. Id. at 702, 43 S. Ct. at 691; Bragg, 251 U.S. at 58, 40 S. Ct. at 63. Hillcrest\nhere does not challenge the Ordinance itself but a specific application of the Ordinance—namely,\nto Hillcrest.\n\n 20\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 21 of 44\n\n\n There is a more fundamental reason why, under our precedent, Hillcrest\n\nlacks a substantive-due-process claim: it brings an as-applied challenge.16 Because\n\nthe role of the executive is to apply, or to enforce, statutes, any as-applied\n\nchallenge necessarily implicates executive, rather than legislative, action. The\n\nConstitution, for example, requires the President to “take Care that the Laws be\n\nfaithfully executed.” U.S. Const. art. II, § 3. Cf. Springer v. Philippine Islands,\n\n277 U.S. 189, 202, 48 S. Ct. 480, 482 (1928) (“Legislative power, as distinguished\n\nfrom executive power, is the authority to make laws, but not to enforce them or\n\nappoint the agents charged with the duty of such enforcement. The latter are\n\nexecutive functions.”).\n\n We drew this distinction between facial and as-applied challenges in\n\nKentner v. City of Sanibel, 750 F.3d 1274 (11th Cir. 2014). There, we reasoned\n\nthat the plaintiffs’ substantive-due-process challenge was to a “legislative act”\n\nbecause the plaintiffs challenged the ordinance “on its face rather than contesting a\n\nspecific zoning or permit decision made under the auspices of the [o]rdinance.”\n\n750 F.3d at 1280. As such, we deemed it not barred by McKinney. We implied in\n\nKentner what we now make clear today: an as-applied challenge to a land-use\n\n\n 16\n At oral argument, counsel for Hillcrest reiterated the nature of its challenge: “The\nbottom line here, Judges, is, ‘Can you codify extortionate leveraging of the police power in an\nordinance and then attempt to enforce it?’ And our position is that the attempt to enforce it is a\nviolation of substantive due process.” Oral Argument at 23:30, Hillcrest Prop., LLP v. Pasco\nCounty, ___ F.3d ___ (2019) (No. 17-14789), https://goo.gl/sq4Bkv (emphasis added).\n\n 21\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 22 of 44\n\n\nstatute never gives rise to a substantive-due-process claim when the sole basis for\n\nthe challenge is allegedly arbitrary behavior that does not infringe on a\n\nfundamental right.\n\n 3.\n\n We cannot be clearer on this point: regardless of how arbitrarily or\n\nirrationally the County has acted with respect to Hillcrest, Hillcrest has no\n\nsubstantive-due-process claim. Cf. Greenbriar Vill., L.L.C., 345 F.3d at 1263\n\n(“[N]on-legislative deprivations of state-created rights, which would include land-\n\nuse rights, cannot support a substantive due process claim, not even if the plaintiff\n\nalleges that the government acted arbitrary and irrationally. Constitutional due\n\nprocess is satisfied for these deprivations when proper procedures are employed.”\n\n(citations omitted)).\n\n IV.\n\n For these reasons, the application of the Ordinance to Hillcrest does not give\n\nrise to a substantive-due-process claim. Because Hillcrest lacks a viable cause of\n\naction, judgment as a matter of law is appropriate. The District Court’s grant of\n\nsummary judgment is therefore REVERSED.\n\n SO ORDERED.\n\n\n\n\n 22\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 23 of 44", "author": "TJOFLAT, Circuit Judge:"}, {"type": "concurrence", "author": "NEWSOM", "text": "NEWSOM, concurring in the judgment:\n\n About 20 years ago now, an insightful (and hilarious) lawyer friend of mine\n\nsaid to me—and because this is a family show, I’ll clean it up a bit—“Not\n\neverything that s[tink]s violates the Constitution.” If ever a case proved the truth\n\nof that little nugget, this is it.\n\n I\n\n A\n\n First things first. What happened to Hillcrest here was pretty doggone\n\ns[tink]y. In short: Hillcrest is the fee-simple owner of 16.5 acres of commercially\n\nzoned land that fronts State Road 52 in Pasco County, Florida. Desiring to put the\n\nland to good (and presumably profitable) use, Hillcrest sought a permit to develop\n\nits property to include a retail shopping center and additional commercial space.\n\nDespite the fact that the County’s own “Comprehensive Plan” described State\n\nRoad 52 and the adjacent areas as having an “acceptable level of roadway surface,”\n\nHillcrest was told that in order to obtain the permit, it would have to give the\n\nCounty a 50-foot strip of land—70,000 square feet total—to accommodate the\n\nroad’s future widening. Hillcrest accordingly revised its site plan to account for\n\nthe 50-foot corridor. Just a few months later, though, having been notified that the\n\nFlorida DOT might want to shift the road’s path, the County demanded that\n\nHillcrest hand over an additional 90-foot band, bringing the required dedication’s\n\n\n 23\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 24 of 44\n\n\ngrand total to 196,000 square feet—4.5 acres, more than a quarter of Hillcrest’s\n\ntotal parcel. Over the course of the next few years, the parties continued to haggle,\n\nthe County continued to deny Hillcrest’s construction permits, and Hillcrest—\n\npresumably feeling like it was trapped in some Ayn-Rand-ian nightmare—\n\neventually sued.\n\n Sounds like a job for the Takings Clause, right? That provision states that\n\n“private property” may not be “taken for public use . . . without just\n\ncompensation,” U.S. Const. amend. V, and has been interpreted to prohibit the\n\ngovernment from conditioning a development permit on a land exaction absent\n\nsolid proof that the exaction both (1) bears an “essential nexus” and (2) “is related\n\nboth in nature and extent” to the proposed development’s impact. See Nollan v.\n\nCalifornia Coastal Comm’n, 483 U.S. 825, 834–37 (1987); Dolan v. City of\n\nTigard, 512 U.S. 374, 391 (1994). Unsurprisingly, in its original complaint,\n\nHillcrest alleged (among other causes of action) takings claims under both the\n\nUnited States and Florida Constitutions, asserting that the “required set aside and\n\ndedication amount[ed] to an uncompensated taking of private property for public\n\nuse requiring the County to pay Hillcrest just compensation.” For support,\n\nHillcrest cited Nollan and Dolan as indicative of the Supreme Court’s “concern\n\nwith,” among other things, the “extortionate leveraging of the police power by\n\n\n\n\n 24\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 25 of 44\n\n\nlocal government to obtain concessions from landowners that the government\n\nwould otherwise have to pay for itself.”\n\n Hillcrest’s takings-based claims, though, never saw the light of day.\n\nHillcrest initially moved to abate its federal takings claim, acknowledging that it\n\nfirst had to “pursue adequate state procedures for seeking just compensation” under\n\nWilliamson County Regional Planning Commission v. Hamilton Bank, 473 U.S.\n\n172 (1985). Then, in conjunction with that exhaustion-of-remedies process,\n\nHillcrest filed an amended federal complaint from which it dropped its Fifth\n\nAmendment takings claim. Several years later, the parties entered into a partial\n\nsettlement agreement pursuant to which Pasco County agreed to pay Hillcrest $4.7\n\nmillion to resolve the takings-based claims.\n\n Meanwhile, the federal-court litigation—minus the Takings Clause\n\nallegation—chugged ahead, with Hillcrest continuing to press what, to my mind,\n\nwas the exact same claim parading under a different banner: “substantive due\n\nprocess.” And the district court let it. By permitting Hillcrest to invoke\n\nsubstantive due process to pursue what was in substance a Takings Clause claim—\n\na claim that, for its own reasons, Hillcrest had dropped from the lawsuit and would\n\neventually settle for good money—the district court clearly erred.\n\n\n\n\n 25\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 26 of 44\n\n\n B\n\n The district court was (understandably) disgusted by the County’s treatment\n\nof Hillcrest. Beginning with the summary judgment hearing, the district court\n\nexpressed profound “discomfort” with Pasco County’s conduct. It just “doesn’t sit\n\nwell,” the court said. “You look at this and it’s disturbing and you think, this is\n\njust not right. Something—somewhere this is flawed, whether [or not] you know,\n\nthe theories happen to fit it.” In the end, the court concluded: “As I sit here, I don’t\n\nquite know whether [the case] fits in any of these [constitutional] slots that [the\n\nlawyers] have laid out, but I’m not sure it shouldn’t . . . . And I’m not sure that if\n\nit doesn’t fit into one of them that I’m not going to find the one it’s closest to and\n\ngive the Circuit Court of Appeals an opportunity to say that it should land there.”\n\nMemorializing its disgust—and reasoning—in a written order, the district court\n\nheld:\n\n Another judge might find . . . this opinion inexact in this or that\n particular of constitutional law. Nonetheless, this Ordinance\n [pursuant to which the County demanded the exaction] is an\n unmistakable, abusive, and coercive misapplication of governmental\n power, perpetrated to cynically evade the Constitution. The\n Ordinance cannot stand, whether for the precise reasons stated here or\n for a related reason.\nTranslation: What Pasco County did here s[tink]s to high heaven; ergo, it must be\n\nunconstitutional—if not under the Takings Clause, because Hillcrest’s takings-\n\nbased claim had evaporated with its amended complaint, then on some (any) other\n\n\n 26\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 27 of 44\n\n\nbasis. The basis that the district court chose—the constitutional “slot[]” into which\n\nit slid Hillcrest’s case—was substantive due process.\n\n That’s not how constitutional law works. Whatever other role substantive-\n\ndue-process doctrine may play, it is not a stand-in for a failed, forfeited, or (even\n\nworse) settled Takings Clause claim. The district court should have seen this case\n\nfor what it is: a not-so-veiled attempt to revive its dropped (and eventually settled)\n\nTakings Clause claim and to infuse it with new substantive-due-process life. The\n\nfact that Hillcrest sought to do so—and that the district court let it, relying on\n\nsubstantive-due-process doctrine as a failsafe for remedying actions that “do[n’t]\n\nsit well” or that are “just not right,” speaks volumes about the doctrine’s\n\nslipperiness.\n\n C\n\n 1\n\n Substantive due process, of course, has been criticized by a wide variety of\n\npeople for a wide variety of reasons. First, and most obviously, there’s the pesky\n\nissue of constitutional text. As John Hart Ely colorfully remarked, “there is simply\n\nno avoiding the fact that the word that follows ‘due’ is ‘process.’” John Hart Ely,\n\nDemocracy and Distrust: A Theory of Judicial Review 18 (1980). “[W]e\n\napparently need periodic reminding,” he said—providing the reminder—“that\n\n‘substantive due process’ is a contradiction in terms—sort of like ‘green pastel\n\n\n 27\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 28 of 44\n\n\nredness.’” Id. Others—from one end of the jurisprudential spectrum to the\n\nother—have made the same basic observation. See, e.g., United States v. Carlton,\n\n512 U.S. 26, 39 (1994) (Scalia, J., concurring in the judgment) (calling substantive\n\ndue process “an oxymoron”); Laurence H. Tribe, American Constitutional Law §\n\n7-5, at 1317 (3d ed. 2000) (referring to “the textual gymnastics arguably necessary\n\nto find protection of substantive rights in a provision whose words seem most\n\napparently concerned with process”).\n\n Second, there’s the matter of history. The best indications are that those\n\nwho framed the Fourteenth Amendment’s Due Process Clause envisioned it as a\n\nguarantee (as its phrasing and moniker indicate) of fair process, not a font of\n\nsubstantive rights. During the floor debates on the Fourteenth Amendment,\n\nCongressman John Bingham—the principal draftsman of the Amendment’s\n\nSection 1—responded to a question about the meaning of the Due Process Clause:\n\n“[T]he courts have settled that long ago, and the gentleman can go and read their\n\ndecisions.” Cong. Globe, 39th Cong., 2d Sess. 1089 (1866). The most prominent\n\nof those “decisions” was undoubtedly Murray’s Lessee v. Hoboken Land &\n\nImprovement Co., 59 U.S. (18 How.) 272 (1855), which the Supreme Court\n\ndecided in 1856 and which, just a decade later, was the definitive statement on the\n\nmeaning of the phrase “due process of law.” The Court there construed the\n\n\n\n\n 28\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 29 of 44\n\n\nmaterially identical terms of the Fifth Amendment’s Due Process Clause solely in\n\nprocedural terms. Specifically, the Court said:\n\n To what principles, then, are we to resort to ascertain whether this\n process, enacted by congress, is due process? To this the answer must\n be twofold. We must examine the constitution itself, to see whether\n this process be in conflict with any of its provisions. If not found to\n be so, we must look to those settled usages and modes of proceeding\n existing in the common and statute law of England, before the\n emigration of our ancestors . . . .\n\nId. at 276–77 (emphasis added); see also, e.g., Akhil Reed Amar, The Bill of\n\nRights: Creation and Reconstruction 173 (1998) (describing Murray’s Lessee as a\n\n“procedural due process” case).\n\n Third, pedigree. At least in the Supreme Court, substantive-due-process\n\ndoctrine traces its roots to the fateful—and repugnant—decision in Dred Scott v.\n\nSandford, 60 U.S. (19 How.) 393 (1857). Invalidating the Missouri Compromise\n\nas violative of the Fifth Amendment’s Due Process Clause, the Court observed that\n\n“an Act of Congress which deprives a citizen of the United States of his liberty or\n\nproperty, merely because he came himself or brought his property”—which was to\n\nsay, another human being—“into a particular Territory of the United States, and\n\nwho had committed no offen[s]e against the laws, could hardly be dignified with\n\nthe name of due process of law.” Id. at 450. Tellingly, the Court voiced no\n\nparticular objection to the procedures by which Congress had enacted the Missouri\n\nCompromise; rather, it simply concluded that, somehow or another, the substance\n\n\n 29\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 30 of 44\n\n\nof the act must have infringed a white man’s “right” to own a black man. Yuck.\n\nFast forward about half a century and you arrive at a second pillar of substantive-\n\ndue-process jurisprudence, Lochner v. New York, 198 U.S. 45 (1905). There, the\n\nCourt invalidated a state statute establishing maximum work hours for bakers as\n\nviolating the “general right to make a contract in relation to . . . business.” Id. at\n\n53. Again, the procedures employed in enacting the law were just fine; even so,\n\nthe Court held that the law was substantively unreasonable and, therefore, that it\n\nsimply had to be unconstitutional. Double yuck.\n\n Finally, in addition to the textual, historical, and ancestral difficulties that\n\nplague modern substantive-due-process jurisprudence, the Supreme Court has also\n\nemphasized a very real practical problem: The “guideposts for responsible\n\ndecisionmaking in this unchartered area are scarce and open-ended.” Collins v.\n\nCity of Harker Heights, 503 U.S. 115, 125 (1992). Put simply, there is always a\n\nrisk that a court asked to recognize a substantive-due-process violation—but\n\nwithout traditional interpretive guardrails—will simply read into the Constitution\n\nits own view of good government. Accordingly, the Supreme Court has\n\nemphasized, “[t]he doctrine of judicial self-restraint requires us to exercise the\n\nutmost care whenever we are asked to break new ground in this field.” Id.\n\n\n\n\n 30\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 31 of 44\n\n\n 2\n\n One important way in which the Supreme Court has set out to “restrain[]”\n\nsubstantive-due-process decisionmaking—significant for present purposes—is by\n\nholding, repeatedly, that “[w]here a particular Amendment ‘provides an explicit\n\ntextual source of constitutional protection’ against a particular sort of government\n\nbehavior, ‘that Amendment, not the more generalized notion of “substantive due\n\nprocess,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510\n\nU.S. 266, 273–74 (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386,\n\n395 (1989)). Put slightly differently, “if a constitutional claim is covered by a\n\nspecific provision”—the Fourth Amendment, the Eighth Amendment, etc.—“the\n\nclaim must be analyzed under the standard appropriate to that specific provision,\n\nnot under the rubric of substantive due process.” United States v. Lanier, 520 U.S.\n\n259, 272 n.7 (1997). More specifically, and more pertinently here, substantive due\n\nprocess “cannot” “do the work of the Takings Clause.” Stop the Beach\n\nRenourishment, Inc. v. Florida Dep’t of Envtl. Prot., 560 U.S. 702, 721 (2010)\n\n(plurality) (citing Albright and Graham).\n\n Bottom line: Whatever its proper office—and, as noted, there’s plenty of\n\ndebate about that—substantive due process does not exist to duplicate (or insure, as\n\nit were) claims appropriately pursued under other constitutional guarantees. If a\n\nclaim properly fits within a specific constitutional provision, then it must rise or\n\n\n 31\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 32 of 44\n\n\nfall on the doctrine that applies to that provision. If (for whatever reason) the\n\nclaim can’t proceed in its natural textual and doctrinal “home,” then, well, it can’t\n\nproceed. The claimant can’t just repackage it in substantive-due-process garb and\n\nattempt to relitigate it.\n\n In that respect at least, this case represents substantive due process at its\n\nabject worst. At its core, this has always—always—been a Fifth Amendment\n\nTakings Clause case. Hillcrest contests Pasco County’s insistence that, as the price\n\nfor developing its roadside parcel, it surrender 196,000 square feet—some 4½\n\nacres—of its land. Put simply, Hillcrest’s is a “land-use exaction” claim—which,\n\nas the Supreme Court has clarified, is one of the quintessential means by which “a\n\nplaintiff [can] challenge a government regulation as an uncompensated taking of\n\nprivate property” under the Fifth Amendment. Lingle v. Chevron U.S.A., Inc., 544\n\nU.S. 528, 548 (2005).\n\n But don’t just take my word for it. Listen to how the magistrate judge and\n\nthe district court described Hillcrest’s arguments. To begin, the magistrate judge—\n\neven while resolving the case on substantive-due-process grounds—summarized\n\nthe nub of Hillcrest’s position as based in Takings Clause principles:\n\n Hillcrest maintained that the dedication requirement resulted in an\n unconstitutional taking of its property and that it should be\n compensated for the 140-foot clear space it is required to dedicate to\n the County in exchange for its development permit/order. When the\n parties failed to resolve the dispute over compensation, this suit was\n filed.\n 32\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 33 of 44\n\n\nR. & R., Doc. 168 at 14 (emphasis added). Explaining what he viewed as the\n\nconstitutional infirmity, the magistrate said that Ordinance No. 11-15 “compelled\n\n[landowners] to surrender private property without compensation as a condition of\n\ndevelopment approval or permitting.” Id. at 26 (emphasis added). The\n\nOrdinance’s “dedication provision,” he continued, “is no mere regulation of land\n\nuse but rather a calculated measure by the County to avoid the burdens and costs of\n\neminent domain and take private property without just compensation.” Id. at 26–\n\n27 (emphasis added). The Ordinance, the magistrate held, “commands that certain\n\nlandowners be forced ‘to bear the public burdens which, in all fairness and justice,\n\nshould be borne by the public as a whole,’ the very thing the Takings Clause of the\n\nUnited States Constitution and the equivalent provision of the Florida Constitution\n\nare intended to prevent.” Id. at 27–28 (emphasis added).\n\n Tellingly, throughout his report—and to support his conclusion that the\n\nOrdinance violates substantive due process—the magistrate judge relied on the\n\nSupreme Court’s decisions in Nollan v. California Coastal Commission, 483 U.S.\n\n825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), both of which, as\n\nalready explained, addressed the constitutionality of land-use exactions under the\n\nTakings Clause. See Doc. 168 at 15–16, 17, 24–25, 27, 29. The magistrate judge\n\nsaid (vaguely) that “[w]hile Nollan and Dolan do not set forth the applicable\n\nstandard”—presumably because they are Takings Clause cases—they “help inform\n\n\n 33\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 34 of 44\n\n\nthe due process analysis.” Id. at 25. Notably, however, when it came to explaining\n\nprecisely why the Ordinance violated substantive-due-process principles, the\n\nmagistrate judge reverted back to a takings-based analysis: “[T]he scheme itself\n\nviolates due process because it is inconsistent with, and permits the County to\n\navoid its obligations under, the Takings Clause of the Fifth and Fourteenth\n\nAmendments of the United States Constitution and Article X, Section 6 of the\n\nFlorida Constitution.” Id. at 29 (emphasis added).\n\n The district court’s decision delivered more of the same. On the very first\n\npage of its order, that court criticized Ordinance No. 11-15 as part of “a most\n\nuncommon regulatory regime” designed “to avoid the payment of ‘just\n\ncompensation’ after acquiring . . . necessary land by eminent domain.” Order\n\nadopting R. & R., Doc. 196 at 1 (emphasis added). In particular, the court said:\n\n“[T]o avoid the nettlesome payment of ‘just compensation,’ the Ordinance\n\nempowers Pasco County to purposefully leverage the permitting power to compel a\n\nlandowner to dedicate land encroached by a transportation corridor. In Pasco\n\nCounty, if there is no free dedication, there is no permit.” Id. at 2 (emphasis\n\nadded). Perhaps most revealingly, the district court observed, even while noting\n\nthat by the time that it issued its order Hillcrest was “assert[ing] no federal takings\n\nclaim,” that “Hillcrest’s core argument invokes two United States Supreme Court\n\ncases”—yes, Nollan and Dolan—“that consider whether a government’s requiring\n\n\n 34\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 35 of 44\n\n\nland in exchange for development approval violates the Fifth Amendment’s\n\nTakings Clause, applied to the states through the Fourteenth Amendment.” Id. at\n\n14–15 (emphasis added). Indeed, the district court went so far as to conclude that\n\n“[u]nder the Takings Clause the infirmity of the Ordinance is clear,” id. at 35, and,\n\nfurther, that “an exaction athwart Nollan and Dolan results in an uncompensated\n\ntaking and not a deprivation of due process,” id. at 37 (emphasis added). What\n\nmade this case “different,” the court said—what took it out of the Takings Clause\n\nbucket and put it into the substantive-due-process bucket—was that here, “by\n\nlegislative fiat, Pasco County use[d] a development permit to compel a landowner\n\neither to convey valuable land for free or to submit to a regime castigated by\n\nDolan,” and thereby “wield[ed] the police power to compel a landowner’s\n\nabandoning rights guaranteed by the Takings Clause.” Id. I’ll have to confess that\n\nI’m having a hard time seeing the doctrinal space—between where the Takings\n\nClause leaves off and substantive-due-process doctrine picks up—that the district\n\ncourt found conclusive.\n\n Tellingly, even in its appellate brief Hillcrest continues to focus on takings-\n\nbased arguments, asserting time and again—buttressed by citations to Nollan and\n\nDolan—that Ordinance No. 11-15 deprives it of “the right to be compensated for a\n\ntaking.” Br. for Appellees at 27; see also id. at 33, 37 (same); id. at 39 (contending\n\nthat the County violated Hillcrest’s fundamental right to be free of “extortionate,\n\n\n 35\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 36 of 44\n\n\narbitrary[,] and irrational regulation and to be compensated for taking of\n\nproperty”). To be sure, Hillcrest now contends that Nollan and Dolan were not\n\nTakings Clause cases per se, but rather “unconstitutional conditions” cases. And\n\nit’s true that both decisions involved the unconstitutional-conditions doctrine. But\n\nas any faithful reading will attest, both fundamentally implicated landowners’\n\nrights under the Takings Clause.\n\n Again, rather than telling, I’ll show. In Nollan, for instance, the Supreme\n\nCourt framed the question as whether, consistent with “the Takings Clause of the\n\nFifth Amendment,” a state agency “could condition its grant of permission to\n\nrebuild [a] house on [the homeowners’] transfer to the public of an easement across\n\ntheir beachfront property.” 483 U.S. at 827. The Court observed that if the state\n\nhad required the homeowners to grant the easement outright there is “no doubt\n\nthere would have been a taking.” Id. at 831. “[C]onditioning their permit to\n\nrebuild their house on their agreeing” to the easement did not “alter[] the\n\noutcome,” the Court held, because there was no “essential nexus” between the\n\nprojected impact of constructing a larger house—e.g., obstructed views from the\n\nroad—and the exaction demanded of the homeowners—i.e., an easement that\n\nwould allow the public to cross their property along the water’s edge. Id. at 834–\n\n37. Takings Clause, through and through.\n\n\n\n\n 36\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 37 of 44\n\n\n Similarly, in Dolan, the Court considered the question whether, under the\n\nTakings Clause, a city “could condition the approval of [a business owner’s]\n\nbuilding permit on the dedication of a portion of her property for flood control and\n\ntraffic improvements”—and, in particular, the question of “the required degree of\n\nconnection between the exactions imposed by the city and the projected impacts of\n\nthe proposed development.” 512 U.S. at 377. The Court opened its analysis by\n\nquoting the Takings Clause in full and reiterating (just as Hillcrest and district\n\ncourt have here, see Doc. 196 at 24; Br. for Appellees at 14) that “[o]ne of the\n\nprincipal purposes of the Takings Clause is ‘to bar Government from forcing some\n\npeople alone to bear public burdens which, in all fairness and justice, should be\n\nborne by the public as a whole.’” Id. at 384 (quoting Armstrong v. United States,\n\n364 U.S. 40, 49 (1960)). The Court held that before a government agency can\n\ncondition a building permit on a property owner’s dedication of a portion of her\n\nparcel, it must, in order to comply with “the Fifth Amendment,” make “some sort\n\nof individualized determination that the required dedication is related both in\n\nnature and extent to the impact of the proposed development.” Id. at 391.\n\n So let’s be clear: Nollan and Dolan—the linchpins of the magistrate judge’s\n\nR&R, the district court’s decision, and Hillcrest’s argument on appeal—are\n\nTakings Clause cases. As the Supreme Court subsequently summarized in Lingle,\n\n“[b]oth Nollan and Dolan involved Fifth Amendment takings challenges to\n\n\n 37\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 38 of 44\n\n\nadjudicative land-use exactions—specifically, government demands that a\n\nlandowner dedicate an easement allowing public access to her property as a\n\ncondition of obtaining a development permit.” 544 U.S. at 546. That description\n\npretty much precisely captures this case: Just like the plaintiffs in Nollan and\n\nDolan, Hillcrest is complaining that Pasco County has required it to relinquish a\n\nportion of its property as a condition for obtaining a development permit.\n\n * * *\n\n Back to the beginning, then: Why aren’t we talking about the Takings\n\nClause? And why are we talking about substantive due process? Because\n\nalthough Hillcrest initially brought a takings claim, it then dismissed that claim\n\n(pending the resolution of parallel litigation in state court) and then eventually\n\nsettled it for $4.7 million. Having done so, Hillcrest now wants a second bite at the\n\napple—in essence, a chance to recover again—under the auspices of substantive\n\ndue process. No way.\n\n The way I see it, Hillcrest’s substantive-due-process claim fails as a matter\n\nof law because, whatever else it may currently be permitted to do, substantive-due-\n\nprocess doctrine cannot be permitted to stand in for a failed or forfeited Takings\n\nClause claim. And it certainly can’t be deployed to allow a litigant to double-dip\n\nand cash in on a takings claim and then relitigate what is for all intents and\n\npurposes the exact same claim under another label.\n\n\n 38\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 39 of 44\n\n\n Accordingly, albeit by a different route, I too conclude that the district\n\ncourt’s decision must be reversed.\n\n II\n\n Having explained my own reasons for concluding that Hillcrest’s\n\nsubstantive-due-process claim fails as a matter of law, let me briefly explain a\n\nreservation that I have about one of the key “moves” that underlies the majority’s\n\nanalysis. To be clear, I think the majority has it exactly right under our existing\n\nprecedent. I’m just not convinced that our precedent has it exactly right.\n\n The majority first holds, in Part III.A. of its opinion, that the property\n\ninterest asserted by Hillcrest here—a “land-use claim”—is a mere “state-created\n\nright” that doesn’t warrant heightened constitutional protection. Maj. Op. at 11.\n\nUnder our decisions in DeKalb Stone, Inc. v. County of DeKalb, 106 F.3d 956\n\n(11th Cir. 1997) (per curiam), and Greenbriar Village, L.L.C. v. Mountain Brook,\n\n345 F.3d 1258 (11th Cir. 2003) (per curiam)—the latter of which is effectively on\n\npoint—I’m convinced the majority is correct about that. 17 Having so concluded,\n\n\n17\n I hasten to add, however, that I reject any suggestion—typically attributed to the oft-repeated-\nbut-rarely-explained dictum that “[p]roperty interests . . . are not created by the Constitution” but\n“[r]ather . . . are created and their dimensions . . . defined by existing rules or understandings that\nstem from an independent source such as state law,” Board of Regents v. Roth, 408 U.S. 564, 577\n(1972)—that all property rights, no matter how traditional, exist by the state’s grace and at its\npleasure. To the contrary, I share Judge O’Scannlain’s view that “there is . . . a ‘core’ notion of\nconstitutionally protected property into which state regulation simply may not intrude without\nprompting” substantive constitutional scrutiny—under either the Takings Clause or (as matters\ncurrently stand) the Due Process Clause. Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1200\n(9th Cir. 1998).\n 39\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 40 of 44\n\n\nthe majority then proceeds, in Part III.B., to reiterate and enforce what we have\n\ncalled the “crucial . . . distinction”—first recognized in McKinney v. Pate, 20 F.3d\n\n1550, 1557 (11th Cir. 1994) (en banc)—“between ‘legislative’ acts and ‘non-\n\nlegislative’ or ‘executive’ acts.” Maj. Op. at 16 (quoting McKinney, 20 F.3d at\n\n1557 n.9). It’s this legislative-executive distinction that I’d like to address briefly.\n\n In short, the distinction (as accurately summarized by the majority) is as\n\nfollows: “When [a person’s] ‘state-created rights are infringed by “legislative act,”\n\nthe substantive component of the Due Process Clause generally protects that\n\nperson from arbitrary and irrational government action.’” Maj. Op. at 15 (citations\n\nomitted). When, by contrast, a state-created right is violated by executive act, the\n\nDue Process Clause provides no substantive protection—even against arbitrary and\n\nirrational government conduct. Because the County’s permit-denying conduct here\n\nwas “quintessentially executive action,” the majority concludes, Hillcrest has no\n\nclaim “regardless of how arbitrarily or irrationally the County has acted.” Id. at 19,\n\n22.\n\n I agree that Hillcrest is challenging non-legislative, executive conduct\n\nhere—it’s pressing an as-applied claim against the enforcement of Ordinance No.\n\n11-15. Accordingly, I also agree that under our precedent Hillcrest enjoys no\n\nsubstantive-due-process protection. And of course I’ve already confessed my view\n\nthat substantive due process is a dubious doctrine that should be cabined, not\n\n\n 40\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 41 of 44\n\n\nexpanded. Having said that, though, I further confess that I don’t fully understand\n\nthe distinction that we’ve drawn between legislative and executive action.\n\n We initially articulated the distinction—in a footnote—in McKinney.\n\n“Executive acts,” we explained, “characteristically apply to a limited number of\n\npersons (and often to only one person).” 20 F.3d at 1557 n.9. They “typically\n\narise,” we said, “from the ministerial or administrative activities of members of the\n\nexecutive branch.” Id. “Legislative acts, on the other hand, generally apply to a\n\nlarger segment of—if not all of—society; laws and broad-ranging executive\n\nregulations are the most common examples.” Id. In the years since McKinney, we\n\nhave repeated (and repeated and repeated—but without further explaining) this\n\ndistinction between legislative and executive acts. See, e.g., Kentner v. City of\n\nSanibel, 750 F.3d 1274, 1279–80 (11th Cir. 2014); Lewis v. Brown, 409 F.3d 1271,\n\n1273 (11th Cir. 2005); Greenbriar, 345 F.3d at 1263; DeKalb Stone, 106 F.3d at\n\n959–60.\n\n I have no real quarrel with the way we defined and categorized legislative\n\nand executive actions in McKinney. I agree that, in the main, legislative acts apply\n\ngenerally to (and across) a broad swath of people, whereas executive acts are\n\naimed at only one or a few. What I don’t understand is why we should think that\n\nthe Constitution provides less protection against executive than legislative\n\ninfringements. There’s certainly no textual basis for the distinction; the Due\n\n\n 41\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 42 of 44\n\n\nProcess Clause says that no “state”—presumably meaning any branch thereof—\n\nshall “deprive any person of life, liberty, or property, without due process of law.”\n\nU.S. Const. amend. XIV, § 1. Nor, so far as I’m aware, have we ever tried to\n\njustify the legislative-executive distinction on historical grounds. And worse, as a\n\npractical matter, the distinction that we’ve drawn—such that the Clause protects\n\nagainst arbitrary and irrational legislative acts, but not against abusive executive\n\nconduct—arguably gets matters precisely backwards. As between the two, it\n\nseems to me, executive action—which, by its nature, is individual, targeted, and\n\none-off, rather than broadly and generally applicable—holds the greater potential\n\nfor abuse. If a piece of arbitrary legislation threatens to gore many oxen at once,\n\nthe ox owners have a fighting chance of exercising enough political muscle to stop\n\nit; the lonely individual whose ox is gored by abusive executive action has next to\n\nnone.\n\n And while it may be true that executive acts “typically” arise from\n\n“ministerial or administrative” undertakings, they can also entail exercises of\n\nsubstantial discretion. This is a case in point. Though perhaps not quite boundless,\n\nit’s clear that the County’s Development Review Committee has wide latitude in\n\nthe way that it enforces and effectuates Ordinance No. 11-15. As the magistrate\n\njudge noted in his R&R, “[t]he DRC has the [sole] authority to approve\n\npreliminary site plans, place conditions on such approval, and to exact right-of-\n\n\n 42\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 43 of 44\n\n\nways” under the Ordinance. So too, the DRC alone decides whether a property\n\nowner has sufficiently proven that the dedication isn’t “roughly proportional” to\n\nthe development’s likely transportation impacts, and accordingly, whether to\n\ncompensate the owner or grant a waiver. As this sad story demonstrates, the\n\nsweeping discretion given to the DRC creates the very real threat of arbitrary and\n\nabusive decisionmaking at every step of the permitting process. 18\n\n\n\n\n18\n Prudential considerations aside, McKinney’s holding—that at least insofar as land-use claims\nare concerned there can be no substantive-due-process claim against even the most abusive\nexecutive action—is at least arguably inconsistent with intervening Supreme Court precedent. In\nthe City of Cuyahoga Falls v. Buckeye Community Hope Foundation, the Court addressed a\nsubstantive-due-process challenge to a city engineer’s refusal to issue development permits to a\nproperty owner. 538 U.S. 188, 198 (2003). In rejecting the claim, the Court declined to reach\nthe question whether the property owner had a protectable interest in the permits “because the\ncity engineer’s refusal to issue the permits . . . in no sense constituted egregious or arbitrary\ngovernment conduct.” Id. (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). The\nCourt’s reliance on Lewis—a § 1983 case involving a substantive-due-process claim concerning\nan alleged police-involved wrongful death—is telling, as it would seem to foreclose any\nsuggestion that a similar analysis is out-of-place when property (rather than life or liberty) is at\nissue. Quoting Lewis, the Court in Buckeye observed that in evaluating “abusive executive\naction . . . only the most egregious official conduct can be said to be ‘arbitrary in the\nconstitutional sense.”’ Id. (quoting Lewis, 523 U.S. at 846). Thus, it would seem, while our\nreview of executive action in substantive-due-process cases must be exceedingly (and\nappropriately) deferential, that review is not nonexistent, such that challenges to executive action\nfail “regardless of how arbitrar[y] or irrational[]” that action may be. Maj. Op. at 21.\n\n In the years since Buckeye, other circuits addressing land-use cases have acknowledged\nthat executive acts are reviewable, even if under a deferential standard. See, e.g., Onyx\nProperties LLC v. Bd. of Cty. Comm’rs of Elbert Cty., 838 F.3d 1039, 1048–49 (10th Cir. 2016)\n(stating, in a zoning case, that “[w]hen analyzing executive action, ‘only the most egregious\nofficial conduct can be said to be arbitrary in the constitutional sense”’) (quoting Lewis, 523 U.S.\nat 846); Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir. 2008) (holding that “[w]hen\nexecutive action like a discrete permitting decision is at issue, only ‘egregious official conduct\ncan be said to be “arbitrary in the constitutional sense”’ . . . it must amount to an ‘abuse of\npower’ lacking any ‘reasonable justification in the service of a legitimate governmental\nobjective’” (quoting Lewis, 523 U.S. at 846 and citing Buckeye, 538 U.S. at 198)).\n 43\n\f Case: 17-14789 Date Filed: 02/13/2019 Page: 44 of 44\n\n\n Again, though, this question—whether it makes sense to subject legislative\n\nbut not executive action to (even minimal) scrutiny under the substantive\n\ncomponent of the Due Process Clause—is one for another day. Today, McKinney\n\ncontrols, and (rightly or wrongly) that decision clearly holds, as the majority\n\nsummarizes, that “executive action never gives rise to a substantive-due-process\n\nclaim unless it infringes on a fundamental right.” Maj. Op. at 2 (emphasis added).\n\nUnder our precedent, Hillcrest’s challenge to the Ordinance’s application here does\n\nnot implicate any fundamental right, and it clearly assails executive action.\n\nAccordingly, just as the majority says, its claim is DOA.\n\n III\n\n For the foregoing reasons, I concur in the judgment of reversal.\n\n\n\n\n 44"}]}	TJOFLAT	MARCUS	NEWSOM	1	{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4590421/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,259	DEMOCRATIC EXECUTIVE COMMITTEE OF FLORIDA, Bill Nelson for US Senate, Plaintiffs-Appellees, v. Laurel M. LEE, in Her Official Capacity as Florida Secretary of State, Attorney General of the State of Florida, Defendants-Appellants, National Republican Senatorial Committee, Intervenor Defendant-Appellant.	Democratic Executive Committee of Florida v. Laurel M. Lee	2019-02-15	18-14758	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Tjoflat, Martin, Rosenbaum", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888016/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888017/", "author_raw": ""}, {"author": "ROSENBAUM, Circuit Judge:", "type": "010combined", "text": "Case: 18-14758 Date Filed: 02/15/2019 Page: 1 of 83\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-14758\n ________________________\n\n D.C. Docket No. 4:18-cv-00520-MW-MJF\n\n\nDEMOCRATIC EXECUTIVE COMMITTEE OF FLORIDA,\nBILL NELSON FOR US SENATE,\n\n Plaintiffs-Appellees,\n\nversus\n\nLAUREL M. LEE, 1 in her official capacity as Florida Secretary of State,\nATTORNEY GENERAL OF THE STATE OF FLORIDA,\n\n Defendants-Appellants,\n\nNATIONAL REPUBLICAN SENATORIAL COMMITTEE,\n\n Intervenor Defendant-Appellant.\n\n\n ________________________\n\n Appeals from the United States District Court\n for the Northern District of Florida\n ________________________\n\n (February 15, 2019)\n 1\n As Florida’s current Secretary of State, Laurel M. Lee has been automatically substituted\nfor Florida’s prior Secretary of State as a party. See Fed. R. App. P. 43(c)(2).\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 2 of 83\n\n\nBefore TJOFLAT, MARTIN, and ROSENBAUM, Circuit Judges.\n\nROSENBAUM, Circuit Judge:\n\n Voting is the beating heart of democracy. It is a\n “fundamental political right, because [it is] preservative of\n all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).\n “It is beyond cavil that ‘voting is of the most fundamental\n significance under our constitutional structure.’” Burdick\n v. Takushi, 504 U.S. 428, 433 (1992) (quoting Ill. Bd. of\n Elections v. Socialist Workers Party, 440 U.S. 173, 184\n (1979)).\n\nLeague of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1215 (N.D.\n\nFla. 2018). We can’t say it any better than that. But, of course, voting alone is not\n\nenough keep democracy’s heart beating. Legitimately cast votes must then be\n\ncounted.\n\n This case requires us to consider Florida’s practice of counting vote-by-mail\n\nballots only after verifying that the voter’s signature provided with the ballot\n\nmatches the voter’s signature in the state’s records. Although this practice is\n\ndesigned to prevent fraud, signature mismatches occur for a variety of reasons—\n\nincluding purely innocent ones. And Florida’s lack of any standards or formal\n\ntraining requirements for those who assess the signatures as mismatched can also\n\ncontribute to false positives for signature mismatches. So the fact that a Florida\n\nelection official may decide a voter’s signature provided with her ballot does not\n\nmatch her signature in the state’s records does not necessarily mean her vote is\n\nfraudulent and should not be counted.\n 2\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 3 of 83\n\n\n But Florida’s election code allows for just that. Because of the way Florida\n\nhas scheduled its election process, some voters who submit a vote-by-mail ballot by\n\nthe stated deadline are not notified about a signature mismatch until after it is too\n\nlate to demonstrate their eligibility to vote. As a result, their votes do not count, and\n\nthey are disenfranchised.\n\n Upon Plaintiffs-Appellees the Democratic Executive Committee of Florida\n\n(“DECF”) and Bill Nelson for U.S. Senate’s (the “Nelson Campaign”) motion, the\n\ndistrict court here entered an order providing these voters with a 48-hour period to\n\ncure their signature mismatch, so their votes could be counted. Defendants-\n\nAppellants the National Republican Senatorial Committee (“NRSC”), the Florida\n\nSecretary of State2 (“Secretary”), and the Florida Attorney General (“Attorney\n\nGeneral”) appealed the district court’s order, and the NRSC sought an emergency\n\nstay of the order.\n\n\n\n\n 2\n As we have noted, Laurel M. Lee was substituted as a defendant in this case when she\nrecently became Florida’s Secretary of State. Florida’s prior secretary of state was a man. For\nease of reference and clarity and since Florida’s current Secretary of State is a woman, we use the\nfeminine gender throughout this opinion to refer to Florida’s Secretary of State, regardless of\nwhether a man or a woman held the position at the time of any specific event discussed in this\nopinion.\n\n 3\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 4 of 83\n\n\n In this opinion, we address only the NRSC’s motion for emergency stay.\n\nBecause the NRSC has not satisfied the requirements for the issuance of a stay in\n\nthis case, we deny its motion.3\n\nI. Background4\n\n Florida allows eligible voters to cast their votes by mailing in their ballots\n\nrather than voting in person on Election Day. See Fla. Stat. § 101.62 (2016). This\n\noption can be especially useful to those temporarily residing away from home, such\n\nas college students, and those with physical impairments that make it difficult to get\n\naround.\n\n To protect against fraud, Florida requires those who choose to vote by mail to\n\nsign the voter’s certificate on the back of the envelope on which they mail their\n\nballots. Fla. Stat. § 101.65 (2016). Voting officials later compare the signature on\n\nthe certificate with the signature on file for that voter. Fla. Stat. § 101.68 (2017). If\n\nthe reviewing official believes the signatures do not match, the ballot is rejected. Id.\n\n For a period, Florida did not afford voters whose ballots were rejected due to\n\nsignature mismatch the opportunity to cure their votes by proving their identities.\n\nSee Fla. Democratic Party v. Detzner, No. 4:16CV607-MW/CAS, 2016 WL\n\n\n\n\n 3\n Since the NRSC filed its appeal as an emergency motion for stay, we previously issued\nour order denying that motion over one dissent. We indicated in that order that written opinions\nexplaining the basis for our decision would follow. This opinion sets forth our reasoning.\n 4\n The facts provided come from the record evidence unless otherwise indicated.\n 4\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 5 of 83\n\n\n6090943, at 2 (N.D. Fla. Oct. 16, 2016). But the signature-match scheme calls on\n\nofficials who are not required to receive formal training to judge the similarities of\n\nsignatures, and everyday factors “such as body position, writing surface, and noise”\n\nall affect one’s signature. Id. at 2, 7. So the signature-match scheme can result in\n\nthe rejection of an eligible voter’s ballot, through no fault of the voter. Id. at 8.\n\n The shortcomings of the signature-match scheme made it nearly certain to\n\nincorrectly reject the ballots of some legitimate voters. As a result, a district court\n\nin Florida (the same one that ruled in the case now under review) held that the\n\nscheme would unconstitutionally disenfranchise legitimate voters and ordered the\n\nstate to provide a way for those voters who had their ballots rejected for signature\n\nmismatch to prove their identities and have their votes count. Id. at 9.\n\n In response to the district court’s decision, the Florida legislature amended the\n\nelection code to allow voters to cure improperly rejected ballots. After that\n\namendment, a voter, upon learning that her vote had been rejected for signature-\n\nmismatch, had until 5 p.m. one day before the election to verify her identity by\n\nsubmitting a cure affidavit and an accepted form of identification. Fla. Stat. §\n\n101.68(4). Working in tandem, the cure provision and the original signature-match\n\nrequirement were supposed to guard against both vote-by-mail fraud and arbitrary\n\ndisenfranchisement of legitimate voters.\n\n\n\n\n 5\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 6 of 83\n\n\n Florida also allows prospective voters who cannot prove their eligibility to\n\nvote to cast provisional ballots. Fla. Stat. § 101.048(1) (2008). Like vote-by-mail\n\nballots, provisional ones are also protected by the signature-match requirement: if\n\nthe signature on the provisional ballot voter’s certificate and affirmation does not\n\nmatch the signature on the voter’s registration, the ballot will not count. Id. §\n\n101.048(2)(b)1. But unlike for vote-by-mail ballots, Florida does not provide a way\n\nfor provisional voters whose ballots were rejected for signature mismatch to cure\n\ntheir ballots.5 Democratic Exec. Comm. of Fla. v. Detzner, 347 F. Supp. 3d 1017,\n\nNo. 4:18-CV-520-MW/MJF, 2018 WL 5986766, at 3 (N.D. Fla. 2018).\n\n Plaintiffs DECF and the Nelson Campaign challenged the constitutionality of\n\nthe signature-match scheme as it relates to vote-by-mail and provisional voters.\n\nThey asserted that the scheme continues to disenfranchise eligible voters on an\n\narbitrary basis, in violation of the First and Fourteenth Amendments. As relevant\n\nhere, Plaintiffs asked the district court for an emergency injunction requiring\n\n\n\n\n 5\n Before the district court, the Attorney General posited that Fla. Stat. § 101.048(1)\nempowers a provisional voter to cure her mismatched signature by 5 p.m. on the second day\nfollowing the election. However, § 101.048(1) merely allows a provisional voter to present written\nevidence supporting her eligibility to vote. That evidence is then considered by the county\ncanvassing board when determining whether the person is entitled to vote. Id. § 101.048(2)(a).\nOnly after determining that the person is entitled to vote does the canvassing board compare\nsignatures. Id. § 101.048(2)(b). The section provides no information about giving notice of\nsignature mismatch in time to implement a cure, let alone information on how to cure. On its face,\n§ 101.048(1) cannot fairly be said to provide provisional voters an opportunity to cure.\n 6\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 7 of 83\n\n\nofficials to stop rejecting ballots based on signature mismatch and to count every\n\nvote-by-mail and provisional vote that had been rejected for that reason.\n\n The district court agreed that the signature-match protection provided by\n\nFlorida’s amended election laws still blocked too many eligible voters. But rather\n\nthan granting plaintiffs’ request to count every vote-by-mail and provisional ballot\n\nthat had been rejected for signature mismatch, the district court issued a much\n\nnarrower preliminary injunction: under it, only the ballots of those voters who were\n\nbelatedly notified of signature mismatch could be counted, and they would be\n\ncounted only after those voters timely verified their identities by following the\n\nnormal cure procedures. See Democratic Exec. Comm., 2018 WL 5986766, at 9.\n\n Defendants the NRSC, the Secretary, and the Attorney General appealed. The\n\nNRSC also sought an emergency stay of the district court’s preliminary injunction.\n\nII. Legal Standard\n\n A stay of a preliminary injunction requires the exercise of our judicial\n\ndiscretion, and the party requesting the stay must demonstrate that the circumstances\n\njustify the exercise of that discretion. In considering a motion for stay, we account\n\nfor the following factors, which substantially overlap with the factors governing\n\npreliminary injunctions: (1) whether the stay applicant has made a strong showing\n\nthat it is likely to succeed on the merits, (2) whether the applicant will be irreparably\n\ninjured absent a stay, (3) whether issuance of the stay will substantially injure the\n\n\n 7\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 8 of 83\n\n\nother parties interested in the proceeding, and (4) where the public interest lies. Nken\n\nv. Holder, 556 U.S. 418, 434 (2009). 6 The first two factors are the most critical. Id.\n\nat 434-35. To satisfy its burden as to those factors, the party seeking the stay must\n\nshow more than the mere possibility of success on the merits or of irreparable injury.\n\nId.\n\n In considering whether to stay a preliminary injunction, we apply the usual\n\nstandards of review governing our review of the merits of the preliminary injunction.\n\nSee U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008). So we\n\nexamine the district court’s grant of the preliminary injunction for abuse of\n\ndiscretion, reviewing de novo any underlying legal conclusions and for clear error\n\nany findings of fact. See id.; Transcon. Gas Pipe Line Co., LLC v. 6.04 Acres, More\n\nor Less, Over Parcel(s) of Land of Approximately 1.21 Acres, More or Less, Situated\n\nin Land Lot 1049, 910 F.3d 1130, 1163 (11th Cir. 2018).\n\n After careful consideration, we deny the NRSC’s motion to stay the\n\npreliminary injunction.\n\nIII. The Nken factors militate against a stay of the preliminary injunction.\n\n\n\n\n 6\n The preliminary-injunction factors a district court considers include the following: (1) the\nlikelihood of success on the merits, (2) whether irreparable injury will occur in the absence of the\npreliminary injunction, (3) the balance of burdens on the parties, and (4) the public interest. See\nSiegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).\n 8\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 9 of 83\n\n\n Before jumping into our application of the Nken factors, we begin by noting\n\nthat Plaintiffs properly sued the Secretary in her official capacity when they asserted\n\nthat Florida’s signature-match regime imposed an undue burden on the right to vote.\n\n“A state official is subject to suit in his official capacity when his office imbues him\n\nwith the responsibility to enforce the law or laws at issue in the suit.” Grizzle v.\n\nKemp, 634 F.3d 1314, 1319 (11th Cir. 2011). Here, of course, the signature-\n\nmatching provisions of the election laws—including the provisions that enabled\n\nbelated notice of mismatch to voters—were at issue. Because the Secretary is the\n\nstate’s chief election officer with the authority to relieve the burden on Plaintiffs’\n\nright to vote, she was appropriately sued for prospective injunctive relief. Fla. Stat.\n\n§ 97.012 (2016); Fla. Democratic Party, 2016 WL 6090943, at 4-5; see also Ex\n\nparte Young, 209 U.S. 123 (1908); Grizzle, 634 F.3d at 1319.\n\n With that established, we now apply the Nken factors to determine whether\n\nthe NRSC is entitled to a stay of the district court’s preliminary injunction.\n\n A. The first Nken factor disfavors a stay because the NRSC has not made\n a strong showing that it is likely to succeed on appeal.\n\n We begin with whether the NRSC has demonstrated a strong likelihood of\n\nsuccess on the merits of appeal. Here, the NRSC has not made a strong showing\n\nthat it is likely to succeed on appeal, either on the merits of the constitutional claim\n\nor on its laches argument.\n\n\n\n 9\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 10 of 83\n\n\n i. The NRSC has not made a strong showing that the burden\n imposed on the right to vote is constitutional as judged by the\n Anderson-Burdick balancing test.\n Plaintiffs DECF and the Nelson Campaign challenged the constitutionality of\n\nthe signature-match scheme as it relates to vote-by-mail and provisional voters, on\n\nthe basis that the scheme violates the prohibition against undue burdens on the right\n\nto vote, as embodied in the First and Fourteenth Amendments.7 We evaluate the\n\nconstitutionality of a challenged election law by applying the Anderson-Burdick test.\n\nAnderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S.\n\n428, 434 (1992). That test requires us to weigh the character and magnitude of the\n\nasserted First and Fourteenth Amendment injury against the state’s proffered\n\njustifications for the burdens imposed by the rule, taking into consideration the\n\nextent to which those justifications require the burden to plaintiffs’ rights. See\n\nAnderson, 460 U.S. at 789; Burdick, 504 U.S. at 434.\n\n A law that severely burdens the right to vote must be narrowly drawn to serve\n\na compelling state interest. Burdick, 504 U.S. at 434. And even when a law imposes\n\nonly a slight burden on the right to vote, relevant and legitimate interests of sufficient\n\nweight still must justify that burden. Common Cause/Ga. v. Billups, 554 F.3d 1340,\n\n1352 (11th Cir. 2009). The more a challenged law burdens the right to vote, the\n\n\n 7\n In the district court, Plaintiffs also alleged that the scheme violates the Fourteenth\nAmendment’s Equal Protection Clause, but the district court did not enter relief on this theory, and\nPlaintiffs did not cross-appeal on that basis. Therefore, we do not explore this particular theory of\nPlaintiffs’.\n 10\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 11 of 83\n\n\nstricter the scrutiny to which we subject that law. Stein v. Ala. Sec. of State, 774\n\nF.3d 689, 694 (11th Cir. 2014).\n\n a. Burden Imposed by the Signature-match Scheme on the\n Right to Vote\n\n We begin our analysis by identifying the burden that Florida’s signature-\n\nmatch scheme imposes on the right to vote. Here, the burden falls on vote-by-mail\n\nand provisional voters’ fundamental right to vote. The Supreme Court has long\n\nrecognized that burdens on voters implicate fundamental First and Fourteenth\n\nAmendment rights. See Anderson, 460 U.S. at 787 n.7. Specifically, voters have a\n\nFirst Amendment right “to associate for the advancement of political beliefs”—a\n\nfreedom likewise protected by the Fourteenth Amendment “from infringement by\n\nthe states.” Williams v. Rhodes, 393 U.S. 23, 30-31 (1968); see also Swanson v.\n\nWorley, 490 F.3d 394, 902 (11th Cir. 2007). 8 They also enjoy a Fourteenth\n\nAmendment right “to participate equally in the electoral process.” See Swanson, 490\n\nF.3d at 902.\n\n To establish an undue burden on the right to vote under the Anderson-Burdick\n\ntest, Plaintiffs need not demonstrate discriminatory intent behind the signature-\n\nmatch scheme or the notice provisions because we are considering the\n\n\n 8\n Swanson discussed these rights in relation to a candidate, but “the rights of voters and the\nrights of candidates do not lend themselves to neat separation.” Bullock v. Carter, 405 U.S. 134,\n143 (1972).\n\n\n 11\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 12 of 83\n\n\nconstitutionality of a generalized burden on the fundamental right to vote, for which\n\nwe apply the Anderson-Burdick balancing test instead of a traditional equal-\n\nprotection inquiry. 9 See, e.g., Anderson, 460 U.S. at 806 (showing that, even without\n\nproof of discriminatory intent, a state’s early filing deadline was still an\n\nimpermissible burden since it was insufficiently justified by legitimate state\n\ninterests); Obama for America v. Husted, 697 F.3d 423, 429-30 (6th Cir. 2012)\n\n(rejecting calls to apply “a straightforward equal protection analysis” and explaining\n\nthat “when a state regulation is found to treat voters differently in a way that burdens\n\nthe fundamental right to vote, the Anderson-Burdick standard applies”).\n\n Here, Florida’s signature-match scheme subjects vote-by-mail and\n\nprovisional electors to the risk of disenfranchisement in two ways. First, problems\n\noccur because of the way in which Florida implements the scheme. And second,\n\ndeficiencies arise because of the very nature of matching signatures.\n\n With respect to Florida’s execution of the signature-match requirement,\n\nFlorida has not enacted uniform standards for matching signatures, nor has it created\n\n\n\n 9\n Under Anderson-Burdick, it is not necessary for a plaintiff to show discriminatory intent\nto make out a claim that the state has unconstitutionally burdened the right to vote. To be sure, a\ntraditional Equal Protection Clause claim is cognizable in the voting context if the plaintiff alleges\nthat discriminatory animus motivated the legislature to enact a voting law. Vill. of Arlington\nHeights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory\nintent or purpose is required to show a violation of the Equal Protection Clause.”). And Plaintiffs’\ncomplaint contained allegations that could be construed as a traditional Equal Protection Clause\nchallenge. But that is not what the district court focused on in granting the preliminary injunction\nunder review. So that issue is not before us.\n 12\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 13 of 83\n\n\nqualifications or training for those who engage in the job. Indeed, election officials\n\nin Florida tasked with comparing signatures on ballots to those on file need not\n\nundergo formal training in handwriting analysis or receive formal guidelines for how\n\nto compare signatures. Democratic Exec. Comm., 2018 WL 5986766, at 2. And\n\nFlorida allows each county to apply its own standards and procedures for executing\n\nthe signature-match requirement, virtually guaranteeing a crazy quilt of enforcement\n\nof the requirement from county to county. Id. at 7 & n.5. While some counties\n\nmay make Herculean efforts to ensure that legitimate vote-by-mail or provisional\n\nvotes, or both, are counted, other counties may do very little to ensure even and\n\naccurate application of the signature-match requirements. See id. Florida’s scheme\n\nprohibits neither.\n\n And even if election officials uniformly and expertly judged signatures,\n\nrightful ballots still would be rejected just because of the inherent nature of\n\nsignatures. Citing a declaration by Dr. Linton A. Mohammed, a certified forensic\n\ndocument examiner, the DECF and the Nelson Campaign presented evidence that\n\ninnocent factors like the writer’s body position, writing surface, type of pen, and\n\nmental and physical states, as well as the surrounding noise, can alter a person’s\n\nsignature and produce mismatches. Consequently, legitimate vote-by-mail and\n\nprovisional voters, through factors out of their control, are burdened with the risk\n\nthat their ballots will incorrectly be rejected for signature mismatch.\n\n\n 13\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 14 of 83\n\n\n Recognizing this problem, in a 2016 case before the same district court that\n\nentered the preliminary injunction now under review, the district court tried to\n\nremedy the deficiencies in Florida’s signature-match scheme by mandating that\n\nthose with mismatched-signature ballots be given a chance to cure. Fla. Democratic\n\nParty, 2016 WL 6090943, at 9. In response to the court’s order, the Florida\n\nlegislature codified a cure provision into the election code. But as it turned out, the\n\nchanges did not adequately address the scheme’s shortcomings.\n\n Heading into the 2018 election, Florida law provided that the deadline for the\n\nsupervisor of elections to receive vote-by-mail ballots was 7 p.m. on the day of the\n\nelection. Fla. Stat. § 101.6103(2) (2008). Even though the opportunity to cure\n\nsignature mismatch should have been part and parcel of any constitutional use of the\n\nsignature-match protection after the district court’s 2016 opinion, Florida required a\n\ncure to be submitted by 5 p.m. on the day before the election—meaning that the\n\ndeadline to cure a rejected ballot came before the deadline for the supervisor to\n\nreceive the ballot in the first place. Fla. Stat. § 101.68(4)(a). And even more\n\nproblematically, the law did not require canvassing boards to even begin the\n\ncanvassing of vote-by-mail ballots and check for signature match before noon on the\n\nday after the election. 10 Id. § 101.68(2)(a) (“The county canvassing board may begin\n\n\n 10\n The Dissent takes issue with this legal conclusion and instead asserts that Florida law\nrequires the county supervisor of election to (1) immediately “compare the signature on the voter’s\n\n\n 14\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 15 of 83\n\n\nthe canvassing of vote-by-mail ballots at 7 a.m. on the 15th day before the election,\n\nbut not later than noon on the day following the election.”). So voters whose\n\nsignatures were deemed a mismatch might not learn that their vote would not be\n\ncounted until it was too late to do anything about it.\n\n\ncertificate with the signature on the voter’s registration entry,” and (2) “immediately notify the\nvoter” if the supervisor finds the signatures do not match. Dissent at 65. But the Dissent’s\ninterpretation of the governing statute is not consistent with either what that statute actually\nrequires or what, in practice, occurs in Florida. To reach its mistaken conclusion, the Dissent relies\non § 101.68(1) and (4)(a). Dissent at 65 & n.32. In relevant part, § 101.68(1) provides, “The\nsupervisor . . . shall receive the voted ballot, at which time the supervisor shall compare the\nsignature of the elector on the voter’s certificate with the signature of the elector in the registration\nbooks or the precinct register to determine whether the elector is duly registered in the county and\nmay record on the elector’s registration certificate that the elector has voted. . . . Except as\nprovided in subsection (4), after a vote-by-mail ballot is received by the supervisor, the ballot is\ndeemed to have been cast . . . .” (emphasis added). By its language, this provision requires the\nsupervisor to compare signatures and record all votes the supervisor deems to be legitimately cast.\nAs for votes the supervisor cannot certify as validly cast, the provision directs us to § 101.68(4).\nThat provision states, “The supervisor shall, on behalf of the county canvassing board,\nimmediately notify an elector who has returned a vote-by-mail ballot . . . that does not match the\nelector’s signature in the registration books or precinct register.” Id. (emphasis added). By its\nterms, this provision requires the supervisor to notify voters whose signatures do not match—but\nonly on behalf of the county canvassing board, not on the supervisor’s own. A third provision not\ncited by the Dissent also comes into play: § 101.68(2)(c)1. That provision directs, “The\ncanvassing board must, if the supervisor has not already done so, compare the signature of the\nelector on the voter’s certificate or on the vote-by-mail ballot cure affidavit as provided in\nsubsection (4) with the signature of the elector in the registration books or the precinct register . .\n. to determine the legality of that vote-by-mail ballot.” This provision tasks the canvassing board\nwith performing the signature-match function for ballots the supervisor, in exercising her authority\nunder § 101.68(1), cannot deem valid ballots. And that is why § 101.68(4) requires the supervisor,\non behalf of the canvassing board, to notify voters whose ballots have been rejected for signature\nmismatch. Indeed, evidence admitted during the hearing in this case bears this out. Leon County’s\nsupervisor of elections testified that while members of his staff immediately make an initial\ncomparison of signatures and approve some ballots, any ballot with a signature that the staff cannot\nvalidate is referred to the canvassing board for review—so it is the canvassing board that rejects\nthe ballots. Of course, nothing stops a county from going above and beyond and notifying voters\nof potential mismatch as soon as the supervisor’s staff flags a ballot for the canvassing board’s\nreview. But the relevant code provision requires only that the supervisor notify voters when an\nactual mismatch is found, and the evidence shows that only the canvassing board may make that\ndetermination.\n\n\n 15\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 16 of 83\n\n\n That is exactly what happened to former U.S. Congressman Patrick Murphy.\n\nA registered voter, Murphy explained in a sworn declaration to the district court that\n\nhe voted by mail using the same signature that he had used in the 2018 primary\n\nelection in Florida. Although Murphy had no issues with his signature before,\n\nMurphy’s ballot was rejected for mismatched signature on Election Day. Because\n\nthe cure deadline had already passed, Murphy could do nothing to have his ballot\n\ncounted. And Murphy was not alone: the record contains other sworn declarations\n\nwith stories of eligible voters who were similarly disenfranchised.\n\n On these facts, we have no trouble finding that Florida’s scheme imposes at\n\nleast a serious burden on the right to vote. 11 See League of Women Voters of N.\n\nCarolina v. North Carolina, 769 F.3d 224, 244 (4th Cir. 2014) (commenting that it\n\nis a “basic truth that even one disenfranchised voter—let alone several thousand—\n\nis too many”). This burden can be constitutional only if justified by legitimate state\n\ninterests of sufficient weight.\n\n b. The State’s Asserted Justifications for the Burden\n\n We therefore turn to the state’s interests. In considering the state’s interests,\n\nwe account for the points the NRSC raises here as well as those raised by the\n\nSecretary and Attorney General before the district court. The identified interests fall\n\n\n 11\n We need not and do not determine whether the burden imposed is anything more than\nserious, since on this record, as we explain, the state’s interests do not sufficiently justify the\nburden imposed.\n 16\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 17 of 83\n\n\ninto three general categories: preventing fraud; promoting the orderly, efficient, and\n\ntimely administration of the election; and ensuring fairness and public confidence in\n\nthe legitimacy of the election.\n\n We begin with Florida’s interest in combatting voter fraud and making certain\n\nthat only legitimate votes are counted. Without a doubt, Florida has a legitimate and\n\nstrong interest in preventing voter fraud. Common Cause, 554 F.3d at 1353-54. But\n\nthat interest is not mutually exclusive of vote-by-mail and provisional voters’\n\ninterest in not being disenfranchised through no fault of their own.\n\n And that’s the problem for Defendants. We must take into consideration not\n\nonly the “legitimacy and strength” of the state’s asserted interest, but also “the extent\n\nto which those interests make it necessary to burden” voting rights. Anderson, 460\n\nU.S. at 789 (emphasis added). Here, Defendants offer no satisfying explanation for\n\nwhy Florida cannot have both a robust signature-match protection and a way to allow\n\nevery eligible vote-by-mail and provisional voter whose ballot is mistakenly rejected\n\nan opportunity to verify their identities and have their votes count. Indeed, if a voter\n\nis able to cure the signature-match problem, no fraud protected against by the\n\nsignature-match provision even arguably occurs. So even without requiring the state\n\nto engage in narrow tailoring—that is, saying nothing about Florida’s lack of\n\n\n\n\n 17\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 18 of 83\n\n\nuniform training or standards from county to county12—Defendants have identified\n\nno fraud-prevention interest that justifies depriving legitimate vote-by-mail and\n\nprovisional voters of the ability to cure the signature mismatch, thereby\n\ndisenfranchising them.\n\n Next, we turn to Florida’s interest in the orderly, efficient, and quick\n\nadministration of an election. Again, we agree that Florida has an important interest\n\nin structuring and regulating its elections to avoid chaos and to promote the smooth\n\nadministration of its elections. See Burdick, 504 U.S. at 433. But that interest does\n\nnot warrant the complained-of burden on voters because Defendants have not\n\ndemonstrated that permitting voters who were belatedly notified of signature\n\nmismatch to cure their ballots would inordinately disrupt the smooth facilitation of\n\nthe election.\n\n As the district court noted, only about 4,000 ballots were rejected for signature\n\nmismatch at the time of its order—less than 5 hundredths of a percent of the more\n\nthan 9 million total ballots cast in Florida for the 2016 general election. Democratic\n\nExec. Comm., 2018 WL 5986766, at 9; Fla. Dep’t of State, Div. of Elections, Voting\n\nActivity by Ballot Type for 2016 General Election (last updated Mar. 24, 2017),\n\nhttps://dos.myflorida.com/media/697842/2016-ge-summaries-ballots-by-type-\n\n\n 12\n The availability of an effective cure process should incidentally also have the salutary\neffect of relieving the burden inflicted on voters by the unevenness of signature-match standards\nand training from county to county.\n 18\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 19 of 83\n\n\nactivity.pdf. Of those 4,000 ballots, not all were cast by eligible voters. And even\n\nfor those that were, only a portion of the eligible voters casting those votes were\n\nbelatedly notified. Even the NRSC has described this subset of injured voters as\n\n“tiny.” So it is difficult to see how—and Defendants have not shown how—a state\n\nequipped to deal with more than 9 million voters would be unduly burdened by\n\nproviding the fraction of a percent of injured voters an opportunity to cure signature\n\nmismatch and have their rightful ballots counted in accordance with the district\n\ncourt’s preliminary injunction.\n\n Nor, as Defendants suggested in the district court, does Lemons v. Bradbury,\n\n538 F.3d 1098 (9th Cir. 2008), support a different conclusion. In Lemons, the Ninth\n\nCircuit worried about the administrative difficulties associated with suddenly\n\nrequiring state officials to provide notice and a chance to cure to thousands of\n\npetition signers when no such requirement previously existed. See id. at 1104-05.\n\nBut here, Florida already had a cure mechanism for those with mismatched\n\nsignatures. See Fla. Stat. § 101.68(4)(a).\n\n And contrary to Defendants’ assertions, it is not too difficult to interpret and\n\napply the district court’s order. Mindful that time was of the essence as the counting\n\nof votes was already underway, the district court allowed for two days from the time\n\nof its order for certain injured voters to cure their ballots, demonstrating that a\n\nreasonable cure period provides 48 hours’ notice of the defect before a voter’s\n\n\n 19\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 20 of 83\n\n\nopportunity to cure expires. Democratic Exec. Comm., 2018 WL 5986766, at 1\n\nn.1, 9. Thus, anyone who received notice later than would allow them 48 hours to\n\ncure was belatedly notified. And consistent with our long practice of relying on the\n\nthreat of penalty of perjury to guard against dishonesty and fraud, see United States\n\nv. Yates, 438 F.3d 1307, 1318 (11th Cir. 2006), the district court’s order allows a\n\nvoter to attest that she was belatedly notified by declaring under penalty of perjury\n\nthat she did not timely receive actual notice of signature mismatch. 13\n\n Finally, we consider Florida’s interest in fundamental fairness and protecting\n\npublic confidence in the legitimacy of the election. Once again, we fully agree that\n\nFlorida enjoys legitimate and strong interests in these things. But in this case, these\n\nconsiderations actually swing decisively in favor of the DECF and the Nelson\n\nCampaign.\n\n On fundamental fairness, Defendants and the Dissent complain that the\n\ndistrict court has unfairly upset settled expectations by changing the rules mid-\n\ncontest. Dissent at 62, 72. We are not convinced.\n\n First, we note that the record here reflects that, in violation of the language of\n\nthe governing provisions, one county counted previously rejected ballots for which\n\n\n\n 13\n The Dissent faults the district court for not fashioning a more perfect preliminary\ninjunction. Dissent at 73-76. But given the circumstances and the district court’s broad discretion\nin shaping an injunction, and as we discuss infra at 30-32, the district court’s order falls within the\nrealm of reasonableness. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)\n(discussing district courts’ wide discretion in molding a preliminary injunction).\n 20\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 21 of 83\n\n\nit received cures after the deadline, since the Post Office had mistakenly held onto\n\ncure submissions beyond the deadline. We certainly do not criticize that county for\n\ntrying to ensure the affected voters were not disenfranchised through no fault of their\n\nown. And to the extent that that county’s actions can be viewed as a technical\n\n“wrong” under Florida’s election code, we do not ascribe to the idea that two wrongs\n\nmake a right.\n\n But the fact remains that Florida already applied changed rules mid-election\n\nto count vote-by-mail votes that did not satisfy Florida’s written rules. So if a\n\ngeneral expectation existed at some point that the rules would be enforced so as not\n\nto count even the votes of vote-by-mail voters whose ballots had been rejected\n\nthrough no fault of their own, as a matter of fact, Florida’s own actions decimated\n\nthat anticipation and effectively created a new expectation: that opportunity would\n\nbe created for the counting of legitimately cast ballots that were not counted through\n\nno fault of the voter.\n\n Second, to the extent that an unsettled expectation and unfairness may have\n\nexisted at the time the district court considered Plaintiffs’ motion for preliminary\n\ninjunction, it befell Plaintiffs. A realistic assessment of the facts here indicates that\n\nvote-by-mail voters who followed the ostensible deadline for their ballots only to\n\ndiscover that their votes would not be counted and that they would have no recourse\n\nwere the ones to experience a clash with their expectations and fundamental fairness.\n\n\n 21\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 22 of 83\n\n\nSee Bullock v. Carter, 405 U.S. 134, 143 (1972) (explaining that “the rights of voters\n\nand the rights of candidates do not lend themselves to neat separation” and that “[i]n\n\napproaching candidate restrictions, it is essential to examine in a realistic light the\n\nextent and nature of their impact on voters”).\n\n To understand why, we briefly visit the recent history of the cure provision in\n\nFlorida. In 2016, as we have noted, the same district court that issued the preliminary\n\ninjunction under review here examined Florida’s signature-match scheme and tried\n\nto address the problem afflicting the subset of voters whose signatures were found\n\nnot to have matched those on file but who were provided no opportunity to remedy\n\nthat problem. Under the 2016 scheme, a vote-by-mail voter had no opportunity to\n\ncure under the code if her ballot was rejected for signature mismatch. Fla.\n\nDemocratic Party, 2016 WL 6090943, at 1. The district court explained then that\n\nthe scheme existing at that time “categorically disenfranchised thousands of voters\n\narguably for no reason other than they have poor handwriting or their handwriting\n\nhas changed over time.” Id. at 7. These otherwise eligible voters, the district court\n\nsaid, were “robbed of one of our most basic and cherished liberties; namely, the right\n\nto vote and have that vote counted.” Id. at 8. To remedy the constitutional infirmity\n\nof the previous signature-match scheme, the district court ordered that those with\n\nmismatched-signature ballots be given a chance to cure. Id. at 9. Shortly after the\n\n\n\n\n 22\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 23 of 83\n\n\ndistrict court issued its order, Florida amended its election code to add a cure\n\nprovision.\n\n Against this backdrop, a fair expectation going into the 2018 election was that\n\nvote-by-mail voters would no longer be subjected to a situation where they would\n\nbe deprived of their right to vote by not having an opportunity to cure legitimately\n\ncast ballots rejected for signature mismatch. But the code’s remedy to make that\n\nexpectation a reality turned out, in practice, to be illusory in some instances.\n\n As we have noted, Florida’s stated deadline for ensuring that the Secretary\n\nreceived vote-by-mail ballots was later than the deadline to cure. And more\n\nsignificantly, canvassing boards were not required to start canvassing vote-by-mail\n\nballots until a day after the election—two days after the cure deadline. To make sure\n\nher ballot was counted, then, a voter had to know that the published 7 p.m. receipt\n\ndeadline did not tell the whole story. She had to anticipate that her ballot would be\n\nrejected for signature mismatch and take affirmative steps like submitting a ballot\n\nwell in advance of the published deadline—which still would not guarantee that she\n\nwould be notified of any signature mismatch until it was too late to do anything to\n\nremedy the problem. Not only is this unrealistic and unreasonable, but as the voters’\n\ndeclarations in this case show, it renders the opportunity to cure illusory in some\n\ncircumstances. In so doing, it defeats the purpose of requiring Florida to add a cure\n\nprovision as expressed in the district court’s 2016 order.\n\n\n 23\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 24 of 83\n\n\n For these reasons, we respectfully reject Defendants’ and the Dissent’s\n\narguments that the preliminary injunction effected an unfair change to the “rules”\n\nand that voters whose votes were not counted for signature mismatch necessarily\n\nhave only themselves to blame. Dissent at 62, 68. It is one thing to fault a voter if\n\nshe fails to follow instructions about how to execute an affidavit to make her vote\n\ncount, see Roe v. Alabama, 43 F.3d 574, 580-81 (11th Cir. 1995), or if she\n\ninexcusably fails to enroll in a political party by a stated deadline, Rosario v.\n\nRockefeller, 410 U.S. 752, 757-58 (1973). But it is quite another to blame a voter\n\nwhen she may have done nothing wrong and instead may have simply had the bad\n\nluck to have had her ballot reviewed by a particularly strict (and not formally trained)\n\njudge of signatures, and then to not have been notified of the problem until it was\n\ntoo late to do anything about it.\n\n For these same reasons, we disagree with the Dissent that the district court\n\nimproperly (1) enfranchised those who did not follow the rules, (2) disenfranchised\n\nthose who would have voted or cured if not for the rules, and (3) diluted the votes of\n\nthose who properly voted according to the rules. Dissent at 72-73.\n\n First, to the extent the district court enfranchised people, it was those vote-by-\n\nmail voters who reasonably expected to be afforded a cure if their ballots were\n\nrejected for mismatched signature. Second, even assuming people exist who would\n\nhave voted but did not because of the defective cure provision, that number is\n\n\n 24\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 25 of 83\n\n\nnominal at best. Even Bad Luck Schleprock 14 would not have been likely to\n\nanticipate that his ballot might be rejected for signature mismatch and that he might\n\nnot be notified about this problem in time to do anything to correct it, and then decide\n\nthat for this reason, he would not submit a ballot in the first place. Finally—even\n\nsetting aside the fact that Florida already acted on its own to count votes that did not\n\nstrictly comply with the rules—the existing counted votes were artificially over-\n\nweighted because the previous vote pool excluded the votes of those who followed\n\nthe vote-by-mail rules yet whose votes were excluded through no fault of their own.\n\nSo allowing these voters an opportunity to have their votes counted did not\n\nimpermissibly dilute the votes of those who followed the rules.\n\n Defendants and the Dissent fret that allowing this small group of affected\n\nvoters an opportunity to demonstrate their eligibility to vote undermines the public’s\n\nfaith in elections. Dissent at 73. But we respectfully disagree. In our view, doubling\n\ndown on the disenfranchisement of vote-by-mail voters who complied with Florida’s\n\npublished deadline is not the way to promote faith in elections.\n\n c. The Weighing of the Burden on the Right to Vote Against\n the State’s Justifications\n\n\n 14\n Bad Luck Schleprock was a character in the 1970s Hanna-Barbera television series The\nPebbles and Bamm-Bamm Show and The Flintstone Comedy Hour. See The Pebbles and Bamm-\nBamm Show, IMDB, https://www.imdb.com/title/tt0066699/?ref_=nv_sr_1 (last visited Feb. 15,\n2019); The Flintstone Comedy Hour, IMDB, https://www.imdb.com/title/tt0068073/ (last visited\nFeb. 15, 2019). He perpetually had a rain cloud over his head and always experienced misfortune.\nSee, e.g., Schleprock’s New Image, IMDB, https://www.imdb.com/title/tt1904367/ (last visited\nFeb. 15, 2019).\n 25\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 26 of 83\n\n\n Finally, we come to the point in the Anderson-Burdick analysis where we\n\nweigh the serious burden Florida’s signature-match scheme imposes on vote-by-\n\nmail voters who have belatedly been notified of a signature mismatch, against\n\nFlorida’s interests in perpetuating this scheme. We conclude on this record that the\n\nserious burden on voters outweighs Florida’s identified interests: the state’s interest\n\nin preventing fraud is not in conflict with the voters’ interest in having their\n\nlegitimately-cast ballots counted; the state has not shown that its interest in\n\nfacilitating timely and orderly election processing will be impaired by providing the\n\ninjured voters with a reasonable opportunity to have their votes counted; and public\n\nfaith in elections benefits from providing injured voters the opportunity to have their\n\nlegitimately cast ballots counted when the reason they were not counted was not the\n\nvoters’ fault.\n\n For these reasons, the NRSC has failed to make a strong showing that it is\n\nlikely to succeed on the merits of the constitutional issue.\n\n ii. The NRSC has not made a strong showing that it is likely to\n succeed on the merits of its laches argument.\n\n The NRSC also argues that the equitable doctrine of laches bars the district\n\ncourt’s preliminary injunction. In response, Plaintiffs urge that laches does not apply\n\nwhen the plaintiff seeks only to stop continuing constitutional violations. We need\n\nnot consider whether laches applies to bar prospective relief from constitutional\n\nharms, because the NRSC cannot satisfy the laches elements.\n 26\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 27 of 83\n\n\n To succeed on a laches claim, the NRSC must demonstrate that Plaintiffs\n\ninexcusably delayed bringing their claim and that the delay caused it undue\n\nprejudice. United States v. Barfield, 396 F.3d 1144, 1150 (2005). This they cannot\n\ndo.\n\n At the time Plaintiffs brought this action, only about a year had passed since\n\nthe Florida legislature amended the signature-match scheme by adding the defective\n\ncure provision, see Fla. Stat. § 101.68 (effective June 2, 2017), and the DECF had\n\njust litigated the topic of signature mismatches, see Fla. Democratic Party, 2016\n\nWL 6090943, at 1. As the district court aptly noted, the DECF did not need to\n\nrelentlessly “search and destroy every conceivable potential unconstitutional\n\ndeprivation,” Democratic Exec. Comm., 2018 WL 5986766, at 8, but could catch\n\nits breath, take stock of its resources, and study the result of its efforts. In fact,\n\nbetween Florida’s adoption of the challenged provisions and the November 2018\n\nelection, the only other major statewide election to occur was the 2018 primary\n\nelection, which wrapped up just weeks before the November 2018 election. So as a\n\nmatter of fact, we cannot find inexcusable delay.\n\n Nor can the NRSC show undue prejudice arising from any delay, since the\n\nNRSC has not established that any of the harms it anticipates are anything more than\n\nminimal or nonexistent. As we have mentioned, the state’s administrative burden\n\n\n\n\n 27\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 28 of 83\n\n\nwas nominal; its interest in preventing fraud was unaffected; and public faith in the\n\nelection is better-served by allowing Plaintiffs’ suit.\n\n On this record, the NRSC cannot make a strong showing that it is likely to\n\nsucceed on the merits of its laches argument.\n\n B. The remaining Nken factors similarly disfavor a stay.\n\n The remaining Nken factors do not persuade us to exercise our discretion to\n\nstay the district court’s injunction.\n\n We begin with irreparable injury. The NRSC claims that it will suffer\n\nirreparable injury because the district court’s order will trigger a chaotic restart of\n\nthe election, cause the NRSC to expend unrecoverable resources on a get-out-the-\n\ncure campaign, and create the “substantial risk” of counting late-cured ballots. We\n\ndisagree.\n\n First, the NRSC’s concern about a chaotic restart of the election is\n\nsignificantly overstated, as we have explained in our discussion about the\n\nmanageability of the district court’s order. Second, the threat of penalty of perjury\n\nsafeguards against false claims of belated notification. Plus, the NRSC’s assertion\n\nabout the risk of undiscoverable fraud is entirely unsubstantiated.\n\n This leaves the NRSC’s contention that the injunction forces it to expend\n\nunrecoverable resources to encourage voters to cure their ballots. But even assuming\n\nthis to be true, that injury is not enough to overcome the NRSC’s inability to show\n\n\n 28\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 29 of 83\n\n\nlikelihood of success on the merits. See Virginian Ry. Co. v. United States, 272 U.S.\n\n658, 672 (1926) (“A stay is not a matter of right, even if irreparable injury might\n\notherwise result to the appellant.”).\n\n As for the public interest and any harm caused by a stay, Defendants similarly\n\nhave failed to show that these factors tilt in their favor. A stay would disenfranchise\n\nmany eligible electors whose ballots were rejected by a flawed signature-match\n\nscheme. And public knowledge that legitimate votes were not counted due to no\n\nfault of the voters—and with no reasonable notice to the voters that their votes would\n\nnot be counted and no opportunity to correct that situation—would be harmful to the\n\npublic’s perception of the election’s legitimacy. Yet protecting public confidence in\n\nelections is deeply important—indeed, critical—to democracy. See Crawford v.\n\nMarion Cty. Election Bd., 553 U.S. 181, 197 (2008) (plurality). And the public\n\ninterest is served when constitutional rights are protected. Melendres v. Arpaio, 695\n\nF.3d 990, 1002 (9th Cir. 2012). So the third and fourth Nken factors do not favor\n\ngranting the stay.\n\n In short, the NRSC has failed to make the requisite showing to justify a stay\n\nof the district court’s preliminary injunction under the Nken factors.\n\nIV. Response to the Dissent\n\n Finally, we address the Dissent’s remaining arguments. These arguments\n\narise from the Dissent’s mistaken notions that the district court improperly reframed\n\n\n 29\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 30 of 83\n\n\nthe issue in the case, producing an injunction that was flawed. We respectfully\n\ndisagree with the Dissent’s reasoning. To explain why, we begin by reviewing the\n\ndistrict court’s charge when addressing a motion for preliminary injunction, as well\n\nas the relief the district court ultimately ordered. We then respond to the Dissent’s\n\nother arguments based on its mistaken notion.\n\n A. The district court was empowered to enter the narrow and reasonable\n preliminary injunction it did.\n\n “Crafting a preliminary injunction is an exercise of discretion and judgment,\n\noften dependent as much on the equities of a given case as the substance of the legal\n\nissues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087\n\n(2017). In considering whether to grant an injunction, a court evaluates the\n\napplicant’s likelihood of success on the merits, whether the applicant will suffer\n\nirreparable harm without the injunction, the balance of equities, and the public\n\ninterest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008).\n\n If the court decides to grant an injunction, it must also ascertain what relief to\n\nprovide, keeping in mind that the purpose of the injunction is not to conclusively\n\ndetermine the rights of parties, but only to balance the equities in the interim as the\n\nlitigation proceeds. Trump, 137 S. Ct. at 2087. In executing its duties, the court\n\nmust pay particular attention to the public consequences of any preliminary relief it\n\norders. See Winter, 555 U.S. at 24. So it is axiomatic that a district court “need not\n\ngrant the total relief sought by the applicant but may mold its decree to meet the\n 30\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 31 of 83\n\n\nexigencies of the particular case.” Trump, 137 S. Ct. at 2087 (quoting 11A Charles\n\nAlan Wright, et. al., Federal Practice and Procedure § 2947 (3d ed.)).\n\n Here, the district court did just that. The preliminary injunction was quite\n\nlimited. Plaintiffs requested the district court categorically enjoin the enforcement\n\nof the signature-match scheme as to all vote-by-mail and provisional ballots,\n\nmeaning they asked the court to require all vote-by-mail and provisional ballots that\n\nhad been rejected for signature mismatch to be counted.\n\n But the district court did “not grant the total relief sought.” See id. Rather, it\n\n“mold[ed] its decree to meet the exigencies of the particular case.” Id. Instead of\n\ndirecting every mismatched ballot to be counted, the district court ordered only the\n\nballots of those voters who had been belatedly notified of the mismatch to be\n\ncounted—and only after those voters cured their ballots within a short window of\n\ntime. That was well within its discretion. Indeed, nothing requires a district court\n\nto award all or nothing when it comes to a preliminary injunction. See id.\n\n And in this case, the district court’s targeted injunction made sense. The\n\nsubset of voters who received timely notice of the signature mismatch were already\n\nafforded the cure provision that the district court had ordered in 2016. So they at\n\nleast had an opportunity to cure a ballot flagged for signature mismatch. But the\n\nsame could not be said of those voters who were not timely notified. They faced the\n\nsame risk of disenfranchisement that the district court identified as unconstitutional\n\n\n 31\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 32 of 83\n\n\ntwo years earlier. The district court carved away much of the relief Plaintiffs\n\npreliminarily requested to award just the portion of the relief Plaintiffs sought that it\n\npreviously found to be constitutionally demanded: an opportunity to cure.\n\n Striking down the signature-match scheme wholesale may have been a\n\npossibility between elections if enough time existed for the legislature to enact a\n\nreplacement or prohibit vote-by-mail and provisional voting. But given the timing,\n\ntaking that course would have awarded too much relief because it might have\n\nallowed some fraudulent ballots to be counted. On the other hand, doing nothing\n\nwould have given too little relief because it risked disenfranchising voters. So the\n\ndistrict court’s Goldilocks solution was just right to address the apparent hole in the\n\nsignature-match process—that is, the lack of a reasonable opportunity to cure a\n\nsignature mismatch. And the awarded relief was a subset of the relief Plaintiffs\n\nsought. That was within the district court’s discretion under the circumstances.\n\n B. The district court did not deny Defendants an opportunity to be heard\n on the relief it ultimately granted.\n\n The Dissent asserts that the district court reframed the question presented by\n\nPlaintiffs from whether the signature-match scheme can withstand constitutional\n\nscrutiny to whether the signature-match scheme and an adequate cure provision can\n\nwithstand constitutional scrutiny. Dissent at 52-53, 71. In the Dissent’s view, the\n\ndistrict court deprived Defendants of due process by denying them an opportunity to\n\nrespond to the allegedly reframed question. Id. at 70-72.\n 32\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 33 of 83\n\n\n Again, we must respectfully disagree.\n\n First, the district court’s grant of partial relief neither reframed the issue nor\n\ndenied Defendants an opportunity to discuss the cure procedure. The Dissent\n\nreaches the contrary conclusion because it equates partial relief with reframing the\n\nquestion. But as we have explained, that is not the case. See supra at 30-31 (quoting\n\nTrump, 137 S. Ct. at 2087) (citation and quotation marks omitted) (a district court\n\n“need not grant the total relief sought by the applicant but may mold its decree to\n\nmeet the exigencies of the particular case”).\n\n Here, Plaintiffs asked the court to require every vote that was rejected for\n\nsignature-mismatch to be counted. That would have entailed throwing out all\n\nsignature-mismatch provisions as an unconstitutional burden on their right to vote.\n\nSo naturally, the district court had to examine the entire signature-mismatch\n\nprocess—including Fla. Stat. § 101.68(4), the cure procedure, which Plaintiffs\n\nexpressly identified in their complaint—to evaluate Plaintiffs’ claim that the\n\nsignature-match scheme unconstitutionally disenfranchised vote-by-mail voters\n\nwhose signatures had been mismatched.\n\n The preliminary injunction the court eventually entered granted only a portion\n\nof Plaintiffs’ requested relief, preserving as much of the statutory scheme as\n\npossible, given the court’s previous ruling that the signature-match provisions\n\nwithout an acceptable cure process unconstitutionally burdened the right to vote. See\n\n\n 33\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 34 of 83\n\n\nFla. Democratic Party, 2016 WL 6090943, at 1. Granting only part of the relief\n\nsought is not reframing the question.\n\n Plus, every party pointed the district court to the cure provision in their filings.\n\nIn their complaint, Plaintiffs first noted that the cure deadline precedes the deadline\n\nfor receipt of vote-by-mail ballots before alleging that “scores of voters are\n\ndisenfranchised based on the timing of the mail.” Plaintiffs reiterated this point in\n\ntheir memorandum in support of their preliminary injunction request, again arguing\n\nthat “scores of voters who are unable to meet [the cure] deadline will be denied the\n\nright to vote.” And all three Defendants independently directed the court’s attention\n\nto the cure provision in their filings, in an effort to show that the signature-match\n\nscheme contained adequate procedural protections. Thus, both sides raised the cure\n\nprovision, and the district court’s consideration of whether the signature-match\n\nscheme and an adequate cure provision can withstand constitutional scrutiny was\n\nentirely appropriate.\n\n Beyond that, the record reflects that the topic of cure came up repeatedly\n\nduring the preliminary injunction hearing. Witnesses were specifically questioned\n\nabout the cure period and notice. See, e.g., Transcript of Nov. 14, 2018, Hearing at\n\n23, Democratic Exec. Comm. of Fla. v. Detzner, 347 F. Supp. 3d 1017 (No. 4:18-\n\nCV-520-MW/MJF) (“So all of the ballots received between 5:30 p.m. on the date\n\nbefore election day and 7 p.m. on election day, those ballots cannot be cured if\n\n\n 34\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 35 of 83\n\n\nthere’s a signature mismatch issue; is that right?” “But if you don’t receive [the\n\ncure documentation] before 5:30 p.m. the day before election day, then [the signature\n\nmismatch] can’t be cured; right?”), 24 (“[D]o you have any idea how many cure\n\naffidavits you got after that 5:30 deadline?”), 30 (“[I]f an individual wants to make\n\nthe argument . . . that a mismatched signature is actually a signature match, . . . they\n\ncannot make that argument [after 5 p.m. the day before the election and between\n\nnoon on Saturday, even though a person may challenge the legality of a vote-by-\n\nmail ballot under Section 101.168 during that period]; right?”), 70 (“[W]hat is your\n\nunderstanding of the process to challenge a ballot by either an elector, a voter, or a\n\ncandidate as it relates to challenging something because there is not a matching\n\nsignature?”). And Defendants did not object.\n\n Not only that, but the court itself asked Plaintiffs’ counsel, “Why would I not\n\norder—if [Plaintiffs] were to win, why wouldn’t I order some process where there\n\nwould be an opportunity to, for example, challenge the rejection of the votes as\n\nopposed to just outright counting them?” Transcript of Nov. 14, 2018, Hearing at\n\n97-98. And Plaintiffs’ counsel responded, “[I]f this Court wanted to grant these\n\nvoters an opportunity to cure their vote-by-mail ballots, signature mismatches, . . .\n\nthere’s a way to do that . . . .” Id. at 100. Plaintiffs’ counsel then went on to suggest\n\n“eliminat[ing] all instances when a ballot can be tossed for a signature mismatch and\n\nthe voter be given zero opportunity to cure that signature mismatch.” Id. at 106.\n\n\n 35\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 36 of 83\n\n\nThe court responded that Oregon’s “14-day period after the election to fix . . .\n\nsignatures” provides “a real opportunity to fix it.” Id. at 107.\n\n And when the district court asked what alternative relief Plaintiffs sought,\n\nPlaintiffs expressly asked the court to fashion a more modest injunction granting\n\nonly partial relief—specifically, “for all of these voters whose ballots have been\n\nrejected for signature mismatch, the alternative relief would be to grant these voters\n\na chance to cure and extend these deadlines to give these voters a chance to have\n\ntheir ballots counted.” Id. at 111. Plaintiffs’ counsel also argued that the signature-\n\nmismatch scheme “impose[s] an undue burden . . . to the extent that it deprives\n\nindividuals [of] the right to vote, and it does so by depriving them [of] the right to\n\ncure their ballot.” Id. at 200.\n\n As for Defendants, the court asked them, “Why would the world come to an\n\nend if, in the next couple of days before the 18th, if I entered an order today that said\n\n. . . that if somebody wants to challenge the rejection of their ballot, they can do so\n\nbetween now and the evening of the 17th.” Id. at 127-28. It further inquired, “Why\n\ndoes a Florida Statute, that does not give an opportunity to challenge the decision of\n\nthe canvassing board comport with due process?” Id. at 167.\n\n Clearly, the cure issue was before the district court, and Defendants had an\n\nopportunity to be heard on it.\n\n C. To determine that Plaintiffs enjoyed a likelihood of success on the\n merits, the district court was not required to grant the entire preliminary\n 36\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 37 of 83\n\n\n injunction Plaintiffs originally requested nor ameliorate the right to\n vote for every voter whose vote was not counted because of signature\n mismatch.\n\n Next, we turn to the Dissent’s suggestion that the district court was required\n\nto find that likelihood of success on the merits turned on whether granting the\n\nrequested injunction in total was appropriate. That mistaken notion elides the\n\ndifference between the merits and the remedy and incorrectly suggests that the\n\ndistrict court’s discretion is limited to an all-or-nothing choice when it comes to\n\nordering injunctive relief. We have already explained why that is not correct. See\n\nsupra at 31.\n\n In a somewhat related vein, the Dissent also contends that the district court’s\n\norder offered no real relief to voters subjected to a flawed signature-match scheme\n\nbecause disenfranchisement is irreparable. Dissent at 60 (“Approximately 5,000\n\n[vote-by-mail] and provisional voters had been disenfranchised . . . by the operation\n\nof the Code’s standardless signature-matching provisions, but they received no\n\nrelief. The Court gave them no relief because the disenfranchisement could not be\n\nundone.”) (quotation marks omitted). We respectfully disagree with the notion that\n\nthe district court offered no relief.\n\n As the Dissent itself notes, rejection for signature mismatch does not\n\nnecessarily mean disenfranchisement. See Dissent at 68 (explaining how a voter\n\ncould cure a ballot rejected for mismatched signature). Some voters, by\n\n\n 37\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 38 of 83\n\n\nhappenstance, will have had a meaningful opportunity to cure because they received\n\ntimely notice of a mismatched signature. And as for the voters who belatedly\n\nreceived notice of signature mismatch, their disenfranchisement was not assured\n\nunless the district court declined to award relief. But here, the district court entered\n\nits preliminary injunction providing them with the same opportunity to cure that\n\nother vote-by-mail voters had had. Those who took advantage of the district court’s\n\nrelief had their ballots counted and were able to avert disenfranchisement.\n\n D. The district court’s preliminary injunction did not violate principles of\n federalism.\n\n The Dissent’s last attack on the district court’s preliminary injunction alleges\n\nthat the court offended principles of federalism by rewriting Florida’s election laws.\n\nDissent at 76-79. According to the Dissent, if Florida’s law were truly\n\nunconstitutional, principles of federalism dictate that the district court’s only\n\nrecourse was to strike the signature-match scheme down in its entirety. Id. at 77-78\n\n& n.42. We do not share the Dissent’s view for three reasons.\n\n First, the district court was not adjudicating final judgment. For the\n\nemergency preliminary injunction motion before it, the district court’s duty was “not\n\nto conclusively determine the rights of parties, but only to balance the equities in the\n\ninterim as the litigation proceeds.” Trump, 137 S. Ct. at 2087. That’s exactly what\n\nthe court did.\n\n\n\n 38\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 39 of 83\n\n\n Second, while federalism certainly respects states’ rights, it also demands the\n\nsupremacy of federal law when state law offends federally protected rights. See\n\nPuerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (rejecting the premise that states\n\nand the federal government should always be viewed as coequal sovereigns and\n\nexplaining that “[i]t has long been a settled principle that federal courts may enjoin\n\nunconstitutional action by state officials.”); Reynolds v. Sims, 377 U.S. 533, 584\n\n(1964) (“When there is an unavoidable conflict between the Federal and a State\n\nConstitution, the Supremacy Clause of course controls.”). Indeed, Ex parte Young,\n\n209 U.S. 123, which authorizes suit against the Secretary in her official capacity in\n\nthis case, was designed to “give[] life to the Supremacy Clause.” Green v. Mansour,\n\n474 U.S. 64, 68 (1985). So to the extent the district court concluded that any aspect\n\nof the signature-match scheme unconstitutionally burdened vote-by-mail voters’\n\nfundamental right to vote, it had a duty to strike down the offending part.\n\n And third, rather than undermining Florida’s sovereignty, the preliminary\n\ninjunction’s solution actually respected it. For purposes of the preliminary\n\ninjunction, instead of throwing out the plausibly legal with the constitutionally\n\nproblematic, the district court narrowly tailored its relief to home in on the one\n\nlimited aspect of Florida’s signature-match scheme it already found unduly burdened\n\nvote-by-mail voters’ right to vote. And it preserved application of the rest of the\n\nscheme in the interim.\n\n\n 39\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 40 of 83\n\n\nV. Conclusion\n\n For these reasons, we deny the NRSC’s motion to stay the district court’s\n\npreliminary injunction.\n\n\n\n\n 40\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 41 of 83", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368512/", "author_raw": "ROSENBAUM, Circuit Judge:"}, {"author": "TJOFLAT, Circuit Judge, dissenting", "type": "dissent", "text": "TJOFLAT, Circuit Judge, dissenting:\n\n This case concerns one of the most important rights, the right to vote, in two\n\nof the most hotly contested 2018 midterm elections. Plaintiffs—alleging that the\n\nsignature-matching provisions of Florida’s Election Code violated the Equal\n\nProtection Clause—requested that the District Court enter an injunction requiring\n\nall vote-by-mail ballots rejected for signature mismatch to be counted. Rather than\n\ngranting or denying the relief the Plaintiffs actually asked for, the District Court\n\ntook the unprecedented step of repleading Plaintiffs’ case and granting relief\n\ncompletely inconsistent with what Plaintiffs requested. Because we should have\n\nstayed the District Court’s inexplicable and extraordinary grant of relief but did\n\nnot, I respectfully dissent.\n\n * * \n\n This case is about vote-by-mail (“VBM”) and provisional ballots that were\n\nrejected during the 2018 general election due to signature mismatch. Under\n\nFlorida law, a VBM voter fills out his ballot, puts it in a mailing envelope, signs\n\nthe voter’s certificate on the back of the envelope, and mails it to the county\n\nsupervisor of elections. 1 For the county canvassing board to count the ballot, the\n\nvoter’s signature on the envelope certificate must match the signature in his voter’s\n\n\n\n\n 1\n See Fla. Stat. §§ 101.6103(1)–(3) (2018).\n\n\n 41\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 42 of 83\n\n\nregistration entry. 2 If the signatures do not match, a VBM voter may submit an\n\naffidavit with identification to cure the defect.3 The voter must deliver his cure\n\naffidavit to the county supervisor of elections by the deadline—5 p.m. the day\n\nbefore the election—for his VBM vote to count. 4\n\n A provisional voter must make a slightly different submission. Because his\n\neligibility to vote cannot be determined when he appears at his precinct to vote, he\n\ncasts a provisional ballot and signs the voter’s certificate. 5 Not later than 5 p.m. on\n\nthe second day following the election, he may submit to the supervisor of elections\n\nevidence supporting his eligibility to vote at the precinct.6 The canvassing board\n\nthen examines the evidence, and if it finds the voter eligible, compares the\n\nsignature on the voter’s certificate with the signature on the voter’s registration\n\nentry. 7 If they match, the provisional ballot is counted. 8\n\n\n\n\n 2\n See id. §§ 101.6103(5), 101.68(1).\n 3\n Id. § 101.68(4)(a). The identification requirement may be met by means of a photo\n(Tier I) or non-photo (Tier 2) ID. Id. § 101.68(4)(c). If a Tier 2 ID is used, the signature on the\ncure affidavit must match the signature in the registration entry. Id. §§ 101.68(2)(c)(1)(a)–(b).\n 4\n Id. § 101.68(4)(a).\n 5\n Id. § 101.048(1).\n 6\n Id.\n 7\n Id. §§ 101.048(2)(a)–(b).\n 8\n Id. § 101.048(2)(b)(1).\n References to “VBM and provisional voters” are, unless indicated otherwise, to VBM\nand provisional voters whose ballots had been, or might be, rejected because the signature on the\n“voter’s certificate” on the envelope enclosing the ballot did not match the signature on the\n“registration entry.” “Registration entry” refers to the “registration books or the precinct\nregister” that contains the putative voter’s signature.\n\n 42\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 43 of 83\n\n\n The Democratic Executive Committee of Florida, on behalf of Democratic\n\ncandidates and voters throughout the state, and Bill Nelson for U.S. Senate\n\n(collectively, “Plaintiffs”) brought this lawsuit against Florida Secretary of State\n\nKen Detzner (the “Secretary”) on November 8, 2018, two days after the polls for\n\nthe general election had closed and the county supervisors of elections had\n\nannounced the results of all early voting and VBM ballots that had been counted.9\n\nPlaintiffs wanted a federal judgment declaring the signature-matching provisions\n\nof the Election Code 10 unconstitutional and enjoining the Secretary to direct the\n\ncounty supervisors of elections to count all of the votes cast by VBM and\n\nprovisional ballots that had been, or might be, rejected due to signature\n\nmismatch. 11 Democratic Exec. Comm. v. Detzner, __ F. Supp. 3d __, No. 4:18-\n\nCV-520-MW/MJF, 2018 WL 5986766, at 3 (N.D. Fla. Nov. 15, 2018). Plaintiffs\n\nalleged that rejecting ballots based on a signature mismatch violated the VBM\n\nvoters’ rights under the Equal Protection Clause of the Fourteenth Amendment,\n\nciting Bush v. Gore, 12 because the signatures are compared without a standard and\n\n\n\n 9\n “The canvassing board shall report all early voting and all tabulated vote-by-mail results\nto the Department of State within 30 minutes after the polls close. Thereafter, the canvassing\nboard shall report . . . updated precinct election results to the department at least every 45\nminutes until all results are completely reported.” Fla. Stat. § 102.141(4)(b).\n 10\n I refer to the relevant Florida statutes as the “Election Code” or “Code.”\n 11\n Plaintiffs also asked the Court to toll the county canvassing boards’ deadline for\nsubmitting “unofficial” election results to the Department of State to ensure that all VBM and\nprovisional ballots would be counted and included in all submitted election results.\n 12\n 531 U.S. 98, 121 S. Ct. 525 (2000) (per curiam).\n 43\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 44 of 83\n\n\nthe decision is therefore arbitrary. Consequently, some VBM and provisional\n\nballots had been erroneously rejected, which denied those voters the right to vote.\n\n After it granted the Republican National Senatorial Committee (“RNSC”)\n\nleave to intervene and entertained the parties’ submissions, the District Court\n\nconcluded that, as Plaintiffs alleged, the Election Code’s standardless signature-\n\nmatching process had arbitrarily deprived “potentially thousands of VBM [and\n\nprovisional] voters . . . of the right to cast a legal vote,” in violation of the Equal\n\nProtection Clause. Democratic Exec. Comm., 2018 WL 5986766, at 8. But it\n\ndeclined to grant the preliminary injunction Plaintiffs sought—that all of the VBM\n\nand provisional ballots be counted.\n\n The Court’s unwillingness to grant the relief Plaintiffs were seeking did not\n\nend the matter. Acting on its own initiative and without notice to the parties, the\n\nCourt shifted gears. Ignoring the fact that the Code’s standardless signature-\n\nmatching process had deprived some VBM and provisional voters of the right to\n\nvote, the Court (1) acted as if the violation had not occurred, (2) declared that the\n\nprovision that afforded VBM voters an opportunity to cure “mismatched signature\n\nballots” had been “applied unconstitutionally, id. at 9, and (3) enjoined the\n\nSecretary to direct the county supervisors of elections to\n\n allow [VBM] voters who have been belatedly notified [that] they have\n submitted a mismatched-signature ballot to cure their ballots by\n November 17, 2018, at 5 p.m. The supervisors of elections shall\n allow mismatched-signature ballots to be cured in the same manner\n 44\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 45 of 83\n\n\n and with the same proof a mismatched-signature ballot could have\n otherwise been cured before November 5, 2018, at 5:00 p.m.\n\nId. 13\n\n This is the injunction now before us.14 The RNSC immediately appealed the\n\norder and moved this Court to stay its enforcement. We declined the stay on the\n\ntheory that the RNSC failed to make the required showing under Nken v. Holder,\n\n556 U.S. 418, 434, 129 S. Ct. 1749, 1761 (2009), including “a strong showing that\n\n[it was] likely to succeed on the merits.” Order at 2.15 I dissented because the\n\nRNSC made the required showing here, and now I write to explain why.\n\n The RNSC demonstrated that it was likely to succeed on the merits of its\n\nappeal. As the District Court’s injunctive order clearly implies, Plaintiffs did not\n\nhave “a substantial likelihood of success on the merits” because the relief they\n\n\n\n\n 13\n Plaintiffs had not challenged the Election Code’s cure provisions, nor had they sought\nany relief specifically for VBM voters who had been “belatedly notified” that their ballots were\nrejected due to mismatching signatures.\n 14\n The District Court did not explain why it granted this injunction rather than the one\nPlaintiffs had requested, except to say that “in balancing the equities for this emergency motion,\nthis [i.e., the injunction before us] is the only constitutional cure that takes into account all the\nparties’ concerns.” Id. at 9. The implication is that the relief Plaintiffs requested would not\nhave been an appropriate “constitutional cure.”\n 15\n In addition, the RNSC needed to show that irreparable injury would occur without a\nstay, the stay would not cause substantial injury to other parties, and a stay was in the public\ninterest. Nken, 556 U.S. at 434, 129 S. Ct. at 1761.\n\n\n 45\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 46 of 83\n\n\nsought—the counting of all VBM and provisional ballots rejected for lack of\n\nmatching signatures—could not be granted. 16\n\n To show why the RNSC is likely to prevail here, I trace the District Court’s\n\nanalysis of Plaintiffs’ equal protection claim from beginning to end. In one\n\nfleeting moment, the Court found that Plaintiffs were likely to succeed on their\n\nclaim. Then, the Court shifted gears and reframed Plaintiffs’ claim. In turn, it\n\ngranted a preliminary injunction that matched the reframed claim and gave a\n\nremedy to a subset of VBM voters—those who, based on the Court’s mistaken\n\nreading of the Code, had been “belatedly notified” that their ballots were rejected\n\ndue to signature mismatch. The remedy was a chance to cure the mismatch.\n\n\n\n\n 16\n The questions presented by the RNSC’s motion for a stay before this Court and\nPlaintiffs’ motion for a preliminary injunction before the District Court were highly similar. As\nthe Nken Court put it,\n\n [t]here is substantial overlap between [the factors governing the granting of a\n stay] and the factors governing preliminary injunctions; not because the two are\n one and the same, but because similar concerns arise whenever a court order may\n allow or disallow anticipated action before the legality of that action has been\n conclusively determined.\n\n556 U.S. at 434, 129 S. Ct. at 1761 (citation omitted). Both questions focus on the likelihood of\nsuccess on the merits—on appeal in one setting, at trial in the other. Here, Plaintiffs are likely to\nsucceed on the merits of their appeal if they can likely show that the District Court abused its\ndiscretion by issuing the preliminary injunction. In the District Court, Plaintiffs had to show\nthey were likely to succeed on the merits of their equal protection claim. Of course, they were\nlikely to succeed on the merits only if the District Court could grant them the injunctive relief\nthey sought—the counting of all VBM and provisional ballots that might be rejected due to\nsignature mismatch.\n\n\n 46\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 47 of 83\n\n\n My discussion proceeds as follows. Part I reviews Plaintiffs’ complaint and\n\nits motion for a preliminary injunction.\n\n Part II recounts the step-by-step process the Court used to conclude that\n\nPlaintiffs had a substantial likelihood of success on the merits of their claim and\n\ntherefore were entitled to the preliminary injunction they requested. The Court\n\nreached that conclusion even though Plaintiffs had not met the requisites for a\n\npreliminary injunction and thus were not entitled to such relief. The deprivation of\n\nthe right to vote that VBM and provisional voters had suffered could not be\n\nundone, Democratic Exec. Comm., 2018 WL 5986766, at 8, even by the District\n\nCourt.\n\n Part III describes why, even though the District Court found that Plaintiffs\n\nhad made the required showing for a preliminary injunction, it could not order the\n\nSecretary to do what Plaintiffs had requested.\n\n Part IV discusses the injunctive relief the Court gave instead, to the VBM\n\nvoters who were “belatedly notified.” I explain that the District Court granted\n\nrelief neither party asked for, and I show how the District Court misread the\n\nElection Code and violated the Constitution along the way. Part V concludes.\n\n I.\n\n A.\n\n\n\n\n 47\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 48 of 83\n\n\n Plaintiffs’ complaint contained two counts, each seeking relief under 42\n\nU.S.C. § 1983 for violations of the Equal Protection Clause. The counts\n\nincorporated the same factual allegations: Signature matching is “entirely\n\nstandardless, inconsistent, and unreliable,” because it is “done without any\n\nconsistent standard or relevant expertise.” Moreover, since “[h]andwriting can\n\nchange . . . for a variety of reasons,” including “physical[,] . . . mechanical . . . and\n\npsychological factors,” “the signature requirement” is “particularly problematic.”\n\nDeciding whether the signature on the voter’s ballot matches the signature on the\n\nvoter’s registration entry is therefore “arbitrary,” as if the decision were made by\n\ntossing a coin.\n\n Count I, styled “First Amendment and Equal Protection,” asserted that\n\nrejecting VBM and provisional ballots based on a signature mismatch arbitrarily\n\ndisenfranchises registered voters, and therefore\n\n is plainly violative of the Equal Protection Clause. “Having once\n granted the right to vote on equal terms, the State may not, by later\n arbitrary and disparate treatment, value one person’s vote over that of\n another.” Bush v. Gore, 531 U.S. 98, 104–05 (2000).[17]\n\n\n\n\n 17\n Count I mentions the First Amendment only in its style, never in its allegations. And\nits final paragraph asserts only an equal protection claim: “Based on the foregoing, Defendant,\nacting under color of state law, has deprived and will continue to deprive Plaintiffs and the voters\nthey represent of equal protection under the law secured to them by the Fourteenth Amendment\nto the United States Constitution and protected by 42 U.S.C. § 1983.”\n 48\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 49 of 83\n\n\nTo remedy the violations, Plaintiffs asked the Court to enjoin the rejection of VBM\n\nand provisional ballots and to order the ballots to be counted (along with the VBM\n\nand provisional ballots that were being counted based on matching signatures).\n\n Count II, styled “Equal Protection” and relying on the same Bush v. Gore\n\nlanguage, asserted that the signature-matching process disproportionately impacts\n\n“racial or ethnic minorities and/or young and first-time voters.” Count II contained\n\nno factual allegations indicating why this is so and did not allege any intentional\n\ndiscrimination by relevant state actors, a required element of an equal protection\n\nclaim. Washington v. Davis, 426 U.S. 229, 239, 96 S. Ct. 2040, 2047 (1976). This\n\nmay explain why the District Court never mentioned Count II in its order granting\n\na preliminary injunction. Accordingly, like the District Court, I will focus only on\n\nCount I.\n\n To sum up Count I, Plaintiffs alleged that signature matching is arbitrary.\n\nThat is, according to Plaintiffs, ballots were rejected based on a bogus signature\n\ncomparison. Plaintiffs sued to vindicate the rights of voters whose ballots were\n\nrejected, and they asked for an injunction requiring the counting of all VBM and\n\nprovisional ballots rejected due to signature mismatch.\n\n B.\n\n\n\n\n 49\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 50 of 83\n\n\n Plaintiffs accompanied their Complaint with a motion for a preliminary\n\ninjunction. The motion asked the District Court to enjoin the Secretary to direct\n\nthe county supervisors of elections to refrain from\n\n rejecting vote by mail and provisional ballots on the basis of a\n signature mismatch [and to] toll the deadline for the county\n canvassing board to submit “unofficial” results to the Department of\n State . . . , in order to ensure that all signed absentee and provisional\n ballots are counted and included in all submitted results.\n\nIn their responses to Plaintiffs’ motion, the Secretary and the RNSC presented\n\narguments based on laches and the four-factor standard for obtaining a preliminary\n\ninjunction. 18 They argued Plaintiffs’ claim was barred by laches, since Plaintiffs\n\nhad known about the signature-matching requirement for years and did not sue\n\nuntil after the polls were closed and the votes were being counted.\n\n On the merits, the Secretary and the RNSC argued that signature-matching\n\nwas reasonable under the Anderson-Burdick balancing test,19 pointing to its role in\n\n\n\n 18\n The RNSC additionally challenged Plaintiffs’ standing to sue on behalf of the voters\nwhose ballots were not counted and raised a res judicata argument based on a prior suit, brought\nby the Democratic Party in 2016, which had challenged the previous signature-matching process.\n 19\n The Supreme Court has recognized “that the right to vote in any manner and the right\nto associate for political purposes through the ballot are [not] absolute.” Burdick v. Takushi, 504\nU.S. 428, 433, 112 S. Ct. 2059, 2063 (1992) (emphasis added) (citing Munro v. Socialist\nWorkers Party, 479 U.S. 189, 193, 107 S. Ct. 533, 536 (1986)). And “[e]lection laws will\ninvariably impose some burden upon individual voters.” Id. Thus, courts “considering a\nchallenge to a state election law must” apply a balancing test and\n\n weigh “the character and magnitude of the asserted injury to the rights protected\n by the First and Fourteenth Amendments that the plaintiff seeks to vindicate”\n against “the precise interests put forward by the State as justifications for the\n\n 50\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 51 of 83\n\n\npreventing fraud and the fact that many other states require a signature match for a\n\nVBM ballot to count.20 They additionally argued that any varying standards for\n\nsignature comparisons across counties fell within the general prerogative of local\n\ngovernments to set their own election procedures. On the other elements of the\n\npreliminary injunction standard, the Secretary and the RNSC argued that Plaintiffs’\n\ndelay in bringing the suit, as well as the availability of adequate state remedies,\n\nsuggested that no federal equitable remedy was needed. They also argued that the\n\nbalance of the equities favored them, as judicial decrees changing the rules in the\n\nmiddle of an election are contrary to the public interest.\n\n In sum, what the District Court had before it was a claim that signature\n\nmatching was arbitrary, every qualified voter had a constitutional right not to be\n\ndisenfranchised because of it, and the appropriate remedy was to count every\n\nsignature-mismatched ballot with no additional information or input from the\n\nvoter. The Court did find that signature matching is arbitrary and that it violates\n\nthe Equal Protection Clause. But as I explain below, the Court then assumed that\n\nsignature matching is constitutional, so long as denied voters have a chance to\n\n\n burden imposed by its rule,” taking into consideration “the extent to which those\n interests make it necessary to burden the plaintiff’s rights.”\n\nId. at 434, 112 S. Ct. at 2063 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S. Ct.\n1564, 1570 (1983)).\n 20\n Thirty-five states other than Florida have such a signature-matching requirement. Vote\nat Home, Voting at Home Across the States, https://www.voteathome.org/wp-\ncontent/uploads/2018/11/Vote-at-Home_50-State-Report.pdf (last visited Feb. 15, 2018).\n 51\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 52 of 83\n\n\ncure. It then granted relief that was designed to give denied voters a longer period\n\nto cure. Plaintiffs, who attacked the practice of signature matching altogether,\n\nnever asked for this longer-to-cure relief.\n\n II.\n\n The District Court recognized that it could grant the preliminary injunction\n\nPlaintiffs requested\n\n only if [Plaintiffs] (1) . . . ha[d] a substantial likelihood of success on\n the merits; (2) irreparable injury will be suffered unless the injunction\n issues; (3) the threatened injury to [VBM and provisional voters]\n outweighs whatever damage the proposed injunction may cause the\n opposing party; and (4) if issued, the injunction would not be adverse\n to the public interest.\n\nDemocratic Exec. Comm., 2018 WL 5986766, at 6 (quoting Siegel v. LePore, 234\n\nF.3d 1163, 1176 (11th Cir. 2000) (en banc)). The District Court found that\n\nPlaintiffs satisfied these four factors. I address each in turn.\n\n A.\n\n The Court found that Plaintiffs had satisfied the first factor in answering the\n\nquestion it thought Plaintiffs’ equal protection claim presented: “whether Florida’s\n\nlaw that allows county election officials to reject vote-by-mail and provisional\n\nballots for mismatched signatures—with no standards, an illusory process to cure,\n\nand no process to challenge the rejection—passes constitutional muster.” Id. at 1.\n\nThe Court answered the question perfunctorily. “The answer is simple. It does\n\nnot.” Id.\n 52\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 53 of 83\n\n\n In identifying the question presented, the District Court reframed Plaintiffs’\n\nequal protection claim as follows: Florida’s signature-matching scheme is\n\nunconstitutional on its face because it is standardless, which causes ballots to be\n\naccepted and denied in an arbitrary fashion, without a meaningful opportunity to\n\ncure or challenge the rejection. Since these voters were afforded neither\n\nopportunity, Florida’s signature-matching scheme failed to pass constitutional\n\nmuster. Reframed, Plaintiffs’ claim was that if VBM and provisional voters were\n\ngiven a meaningful opportunity to cure or challenge a ballot rejection, the fact that\n\nthe signature-matching scheme had arbitrarily burdened their ballots did not\n\nmatter.\n\n The District Court answered the reframed question that Plaintiffs’ equal\n\nprotection claim presented in four steps. First, the Court explained why the Code’s\n\nsignature-matching provisions were standardless and produced arbitrary decisions\n\nin violation of the Equal Protection Clause. Second, it explained why the\n\nprocedure the Code provided for curing a rejected ballot was illusory. Third, it\n\nfound that the Code failed to provide an effective process for challenging such\n\nrejection. And last, the Court implied that it could redress with an injunctive order\n\nthe injury the signature-matching provisions caused VBM and provisional voters.\n\n 1.\n\n\n\n\n 53\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 54 of 83\n\n\n The District Court found that the Code’s signature-matching provisions, Fla.\n\nStat. §§ 101.68(1), (2)(c)(1) (VBM ballots), and §§ 101.048(2)(b), 101.68(c)\n\n(provisional ballots), were standardless and therefore offensive to the Equal\n\nProtection Clause.\n\n For a vote-by-mail ballot to be counted, the envelope of that ballot\n must include the voter’s signature. [Fla. Stat. § 101.65.] Once the\n vote-by-mail ballots are received, county canvassing boards review\n those ballots to verify the signature requirement has been met. Id. §\n 101.68(c). In addition to confirming the envelope is signed, the\n county canvassing boards confirm the signature on the envelope\n matches the signature on file for a voter. These county canvassing\n boards are staffed by laypersons that are not required to undergo\n formal handwriting-analysis education or training. Moreover,\n Florida has no formalized statewide procedure for canvassing boards\n to evaluate whether the signature on a vote-by-mail ballot matches the\n signature on file with the elections office.\n\nDemocratic Exec. Comm., 2018 WL 5986766, at 2 (emphases added) (footnote\n\nomitted). In addition to these shortcomings, “counties have discretion to apply\n\ntheir own standards and procedures. . . . The only way such a scheme can be\n\nreasonable is if there are mechanisms in place to protect against arbitrary and\n\nunreasonable decisions by canvassing boards to reject ballots based on signature\n\nmismatches.” Id. at 7 (emphasis added).\n\n The same was true for the provisional ballots, which were cast by the voter\n\nin person. The ballot could not be counted if the signatures did not match:\n\n Provisional ballots are placed in a secrecy envelope and sealed. The\n person casting a provisional ballot has until 5 p.m. on the second day\n following an election to present written evidence supporting his or her\n 54\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 55 of 83\n\n\n eligibility to vote. . . . A provisional ballot shall be cast unless the\n canvassing board finds by a preponderance of the evidence the person\n was not entitled to vote. After making the initial eligibility\n determination, the county canvassing board must further compare the\n signature on the provisional ballot voter’s certificate with the\n signature on the voter’s registration. If the signatures match, the vote\n is counted.\n\nId. at 3 (citations omitted). In sum, the District Court found that the Code’s\n\nstandardless signature-matching scheme arbitrarily deprived VBM and provisional\n\nvoters of the right to vote in the 2018 general election in violation of the Equal\n\nProtection Clause. Id. at 8.\n\n 2.\n\n Next, the District Court analyzed the Code’s provision for curing a\n\nsignature-rejected ballot in Fla. Stat. §§ 101.68(4)(a)–(b). It found that the “cure\n\nperiod” it provided “was intended to solve the inherent problems in signature\n\nmatching” but did not. Democratic Exec. Comm., 2018 WL 5986766, at 7. In the\n\nCourt’s mind, “the opportunity to cure ha[d] proven illusory. Vote-by-mail voters,\n\nin this election, were not notified of a signature mismatch problem until it was too\n\nlate to cure.” Id. As for the provisional voters, the Code provided “no opportunity\n\nto cure under the law. Without this Court’s intervention, these potential voters\n\n\n\n\n 55\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 56 of 83\n\n\nhave no remedy. Rather, they are simply out of luck and deprived of the right to\n\nvote,” in violation of the Equal Protection Clause. Id. 21\n\n 3.\n\n The District Court found nothing in the Code that gave VBM and\n\nprovisional voters the right to challenge a signature mismatch, whether\n\nadministratively or in court. “Florida law provides no opportunity for [VBM]\n\nvoters to challenge the determination of the canvassing board that their signatures\n\ndo not match, and their votes do not count.” Id. at 2.22 And “[t]here is no\n\nmechanism for a [provisional] voter to challenge the canvassing board’s\n\ndetermination that the voter was or was not eligible to vote.” Democratic Exec.\n\nComm., 2018 WL 5986766, at 3. 23\n\n\n\n 21\n As it turned out, the Court did nothing for voters who cast provisional ballots; the\npreliminary injunction it entered did not apply to them by its terms. But the Court essentially\nintervened on behalf of VBM voters, though it limited its intervention to a subset of VBM voters,\nto those who were “belatedly notified [that] they ha[d] submitted a mismatched-signature ballot.”\nId. at 9.\n 22\n This statement is correct in part. Once a signature mismatch determination is made\n(and, for VBM ballots, the cure period is over), there is no administrative remedy, and normal\nstatutory processes will not revive any ballots so rejected. But judicial review of signature-\nmismatch determinations for VBM ballots is available in the Florida Circuit Court in any\ncircumstance where the number of challenged votes might change the outcome of the election,\nalbeit on a limited record and with a deferential standard of review. Fla. Stat. §§ 102.168(1), (3),\n(8). Rejection of valid provisional ballots may also be challenged in the Florida Circuit Court,\nand the evidentiary and standard-of-review limitations of subsection (8) do not apply. See id. §§\n102.168(3)(c), (8) (providing for a cause of action based on “rejection of a number of legal votes\nsufficient to change . . . the result,” with limitations that apply only to VBM-ballot signature-\nmismatch challenges).\n 23\n At some point in its analysis of whether the Code’s signature-matching provisions\nviolated the Equal Protection Clause, the District Court apparently concluded that it did not\n\n\n 56\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 57 of 83\n\n\n 4.\n\n Once it recognized that the Code’s standardless signature-matching\n\nprovisions operated to deprive VBM and provisional voters of the right to vote, the\n\nDistrict Court had to decide whether it could redress the deprivation with a\n\npreliminary injunction. If it could not, Plaintiffs could not satisfy the first factor\n\nfor obtaining a preliminary injunction, a substantial likelihood of success on the\n\nmerits.\n\n Plaintiffs’ proposal was an order requiring the Secretary to direct the county\n\nsupervisors of elections to accept the VBM and provisional ballots that had been,\n\nor might be, rejected due to signature mismatch and to toll the deadline for the\n\ncounty canvassing boards’ submission of the unofficial election results to the\n\nDepartment of State until all these rejected ballots had been counted. If the Court\n\n\n\n\nmatter whether the Code provided VBM and provisional voters with effective procedures for\ncuring or challenging the rejection of their ballots. The Court did so for two reasons.\n First, in framing their equal protection claim, Plaintiffs did not challenge the\nconstitutionality of the Code’s procedures for curing or challenging the rejection of VBM and\nprovisional ballots. From their point of view, the cure provisions were adequate. Rather, the\ninjury for which Plaintiffs sought injunctive relief was the arbitrary rejection of VBM and\nprovisional ballots, and thus the deprivation of the voters’ right to vote, in the application of the\nstandardless signature-matching provisions. “[T]he asserted injury,” as the Court was quick to\nrecognize, was “the deprivation of the right to vote based on a standardless determination made\nby laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the\nsignature on file with the supervisor of elections.” Id. at 7. This was the injury Plaintiffs\nwanted the Court to redress.\n Second, since the signature-matching provisions were unconstitutional, the VBM and\nprovisional voters didn’t need a procedure for curing or challenging the rejection of their ballots.\nAn injunction requiring that their ballots be counted would provide them with all the relief they\nneeded.\n 57\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 58 of 83\n\n\ncould not issue such an order, Plaintiffs could not show likelihood of success on\n\nthe merits; nor could they establish the second, third, and fourth factors, since\n\nthose factors depend on the issuance of an injunction redressing the constitutional\n\nviolation the Court found.\n\n The Court declined to issue the proposed injunction. It could not ameliorate\n\nthe deprivation of the right to vote, because, as the Court concluded, that\n\ndeprivation “cannot be undone.” See id. at 8. But instead of dismissing\n\nPlaintiffs’ constitutional claim, the Court moved to the second, third, and fourth\n\nfactors, to determine whether they had been established. In doing so, it implied\n\nthat Plaintiffs satisfied the first factor, the likelihood of success on the merits. 24\n\n B.\n\n The District Court had no difficulty concluding that Plaintiffs had\n\nestablished the second factor, irreparable injury. “Potentially thousands of voters\n\nhave been deprived of the right to cast a legal vote—and have that vote counted—\n\nby an untrained canvassing board member based on an arbitrary determination that\n\ntheir respective signatures did not match.” Id. at 8. This deprivation, according\n\n\n\n\n 24\n As I explain in Part III, the District Court was correct not to grant this relief.\n\n\n 58\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 59 of 83\n\n\nto the Court, would be irreparable if the injunction Plaintiffs proposed did not\n\nissue. 25\n\n C.\n\n The District Court had no difficulty concluding that Plaintiffs had\n\nestablished the third factor as well. The threatened injury to the VBM and\n\nprovisional voters outweighed whatever damage the proposed injunction caused\n\nthe Secretary. As the Court put it, “The burden on the right to vote, in this case,\n\noutweighs the state’s reasons for the practice. Thus, . . . this scheme\n\nunconstitutionally burdens the fundamental right of Florida citizens to vote and\n\nhave their votes counted.” Id. at 7. 26\n\n D.\n\n The District Court found the fourth factor was satisfied because the\n\ninjunction Plaintiffs sought was\n\n in the public interest. The right of voters to cast their ballots and have\n them counted is guaranteed in the Constitution. Once again, Florida’s\n statutory scheme threatens that right by rejecting votes based on\n signature mismatch without an opportunity to challenge that\n determination.\n\nId. at 9 (citation omitted).\n\n\n 25\n Of course, the District Court knew it wasn’t going to grant the injunction Plaintiffs\nasked for. Instead, the District Court was going to grant the injunction that would remedy its\nreframed claim. This discussion of the second factor was just window dressing.\n 26\n The scheme may burden the citizens’ right to vote, but the District Court—by refusing\nto grant the injunction Plaintiffs asked for—did nothing to lift the burden and instead maintained\nthe status quo. This discussion was more window dressing.\n 59\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 60 of 83\n\n\n * \n\n The District Court spent a lot of time analyzing the four factors. But at\n\nbottom, it was all window dressing—pretext to issue an injunction unmoored from\n\nPlaintiffs’ complained-of injury. This analysis had nothing whatsoever to do with\n\nthe injunction the Court finally issued—to give VBM voters who were “belatedly\n\nnotified” that their ballots were rejected a chance to cure the rejection.\n\n III.\n\n Finding that Plaintiffs had satisfied the requirements for obtaining a\n\npreliminary injunction, the District Court “granted” their motion for that relief. Id.\n\nat 9. But the word “granted” was empty. The Court did nothing to vindicate the\n\nright to vote for the VBM and provisional voters whose ballots had allegedly been\n\narbitrarily rejected. “Approximately 5,000” VBM and provisional voters had been\n\ndisenfranchised in violation of the Equal Protection Clause by the operation of the\n\nCode’s standardless signature-matching provisions, but they received no relief.\n\nThe Court gave them no relief because the disenfranchisement could not be\n\n“undone.” Id. at 8.\n\n The right of suffrage is “a fundamental political right,” Yick Wo v. Hopkins,\n\n118 U.S. 356, 370, 6 S. Ct. 1064, 1071 (1886), protected by the Equal Protection\n\nClause of the Fourteenth Amendment. Bush, 531 U.S. at 104–05, 121 S. Ct. at\n\n529–30. “[T]he right of suffrage can be denied by a debasement or dilution of the\n\n\n 60\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 61 of 83\n\n\nweight of a citizen’s vote just as effectively as by wholly prohibiting the free\n\nexercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362,\n\n1378 (1964); accord Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995) (per\n\ncuriam). “One source of [the right’s] fundamental nature lies in the equal weight\n\naccorded to each vote and the equal dignity owed to each voter.” Bush, 531 U.S. at\n\n104, 121 S. Ct. at 529.\n\n If, as Plaintiffs alleged, accepting or rejecting a VBM ballot is arbitrary due\n\nto the lack of a uniform signature-matching standard, then it is nearly certain that\n\nthe ballots of some unregistered voters were improperly accepted and counted, and\n\nthe ballots of some registered voters were improperly rejected and not counted.\n\n With these two issues in mind, if Plaintiffs’ allegations are true and the\n\nsignature-matching decision is arbitrary, the Code would violate the Constitution in\n\ntwo ways. First, arbitrarily accepting the ballots of unregistered voters, because\n\nthe signatures seemed to match, and counting their votes would dilute the votes of\n\nregistered voters. And since this constitutes “arbitrary and disparate treatment,\n\nvalu[ing] one person’s vote over that of another,” this vote dilution would violate\n\nthe Equal Protection Clause. Id. at 104–05, 121 S. Ct. at. 530. Second, arbitrarily\n\nrejecting the ballots of registered voters, because the signatures seemed not to\n\n\n\n\n 61\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 62 of 83\n\n\nmatch, would deprive those voters of the right to vote, in violation of the Equal\n\nProtection Clause. 27\n\n But even if Plaintiffs were right—and the signature-matching decisions were\n\nno better than flipping a coin—the District Court could not grant Plaintiffs’\n\nrequested relief for two reasons.\n\n First, Plaintiffs’ requested relief would have changed the rules that dictate\n\nwhether a ballot is valid, and it would have done so in the middle of the vote count.\n\nOur precedent prohibits this sort of midstream change. See Roe, 43 F.3d at 581.\n\nSuch changes are fundamentally unfair, since they inevitably dilute the votes of\n\neveryone who complied with the pre-rule-change requirements. These are not the\n\nrules under which the campaigns and election were conducted, so imposing them at\n\nthis stage violates fundamental fairness.\n\n The obvious constitutional remedy—the remedy that would cure any\n\nproblems flowing from the arbitrary signature-matching decisions—would be to\n\nknock out all VBM ballots, except the rejected ballots that had been cured (since\n\nthose voters had proven their identity with adequate identification). But the\n\n\n\n\n 27\n Similarly, some provisional voters found eligible to vote in the precinct where they\nvoted were arbitrarily deprived of the right to vote because the signatures seemed not to match.\nSee Fla. Stat. § 101.048(2)(b)(1).\n\n\n 62\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 63 of 83\n\n\nobvious remedy was out of the question; it would render the outcomes of the 2018\n\ngeneral election politically, if not constitutionally, unacceptable.28\n\n Second, Plaintiffs’ requested relief was inconsistent with the nature of their\n\nclaim, which is a facial challenge. Plaintiffs’ claim is a facial challenge because,\n\naccepting their theory, the Code cannot be applied in a constitutional way—the\n\narbitrary signature-matching decision will always be a constitutional violation.\n\nIndeed, the Code was applied exactly as written in this case, yet Plaintiffs still\n\nallege that the signature-matching decision is unconstitutional. Nor is the Code\n\napplied constitutionally when the supervisor of elections gets the signature-\n\nmatching decision right. Under Plaintiffs’ theory, the decision itself is still\n\narbitrary because it is made without a standard. Any correct decisions are still\n\nrandom, and the whole ballot pool is tainted by the arbitrary filter.\n\n If, as the District Court concluded, the signature-matching process is\n\narbitrary—and thus unconstitutional—only one remedy would cure the harm:\n\npreventing the Secretary from enforcing the entire VBM and provisional voting\n\nschemes. 29 See United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000)\n\n(“The remedy if the facial challenge is successful is the striking down of the\n\n\n\n 28\n Because the District Court could not remedy Plaintiffs alleged injury, it should have\nfound that Plaintiffs were unable to succeed on the merits on their claim.\n 29\n The Court was right not to grant this remedy, but it should have concluded that,\nbecause the only remedy for Plaintiffs’ alleged injury was unworkable, Plaintiffs were unlikely\nto succeed on the merits on their claim. The Court then should have stopped there.\n 63\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 64 of 83\n\n\nregulation . . . .” (citing Stromberg v. California, 283 U.S. 359, 369–70, 51 S. Ct.\n\n532, 536 (1931))).\n\n IV.\n\n Instead of dismissing Plaintiffs’ claim because it couldn’t grant the relief\n\nthey sought, the District Court pivoted and held this: “Florida’s statutory scheme as\n\nit relates to curing mismatched-signature ballots has been applied\n\nunconstitutionally.” 30 Democratic Exec. Comm., 2018 WL 5986766, at 9. The\n\nCourt remedied the manufactured constitutional error by ordering the Secretary to\n\nallow voters who were “belatedly notified they ha[d] submitted a mismatched-\n\nsignature ballot to cure their ballots by November 17, 2018, at 5:00 p.m.” Id.\n\n(emphasis added).31 In addition to granting relief unrelated to Plaintiffs’ claim—\n\nand different from the relief Plaintiffs actually asked for—the District Court also\n\nmisread the Election Code.\n\n\n\n 30\n The relevant provisions are Fla. Stat. §§ 101.68(1), 2(a), 2(c)(1), and (4). As the\nensuing discussion in the text indicates, the District Court overlooked § 101.68(1) and its\nrelationship to § 101.68(4)(a) and focused instead on §§ 101.68(2)(a) and (2)(c)(1). The\ninjunctive order did not expressly identify the provisions the supervisors of elections\nunconstitutionally applied. The order is silent as to the constitutional right(s) the supervisors of\nelections or the canvassing boards violated in applying “Florida’s statutory scheme as it relates to\ncuring mismatched-signature ballots.”\n 31\n Despite the District Court’s statements about the injury to provisional-ballot voters, its\norder does not apply to provisional ballots at all: only “voters who have been belatedly notified”\ncan avail themselves of the relief. Id. at 9. Provisional ballot voters whose ballots were\nrejected were not “belatedly notified” since there was no requirement to notify them at all. Even\nif they had been notified that their ballots were rejected, such notice would not be “belated” since\nthere was no opportunity to cure provisional ballots regardless.\n\n 64\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 65 of 83\n\n\n I divide this Part into three sections. First, I explain how the Code operates.\n\nSecond, I show how the District Court misread and misapplied the Code. Third, I\n\nhighlight how the District Court abused its discretion and violated the Constitution\n\nin the process.\n\n A.\n\n To show what the District Court misunderstood, let’s start with the proper\n\nunderstanding of how these VBM provisions operate. A VBM ballot, once filled\n\nout, is placed within a mailing envelope. The voter then signs the voter’s\n\ncertificate on the back of the envelope and sends the envelope to the county\n\nsupervisor of elections, who must receive it by 7 p.m. on election day. Fla. Stat. §§\n\n101.65, 101.67(2). Instructions, provided with every ballot, warn the voter that if\n\nhis signature on the voter’s certificate does not match the signature on the voter’s\n\nregistration entry, the ballot “will be considered illegal and not be counted.” Id. §\n\n101.65.\n\n Immediately after the county supervisor of elections receives the ballot, the\n\nsupervisor must compare the signature on the voter’s certificate with the signature\n\non the voter’s registration entry. 32 On finding that a voter’s certificate is missing a\n\n\n\n 32\n The statute reads, in relevant part:\n\n The supervisor of the county where the absent elector resides shall receive the\n voted ballot, at which time the supervisor shall compare the signature of the\n\n\n 65\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 66 of 83\n\n\nsignature, or that the signature on the certificate does not match the one in the\n\nregistration entry, the supervisor of elections must immediately notify the voter, id.\n\n§ 101.68(4)(a), and allow him to cure the defect.33 The voter will have until 5 p.m.\n\nthe day before the election to present the supervisor of elections a signed affidavit\n\nthat includes a copy of an appropriate form of identification and a sworn statement\n\nverifying that the ballot is his. Id. §§ 101.68(4)(a)–(b). This submission can be\n\nmade via mail, fax, or email. Id. §§ 101.68(4)(c)(4)–(5).\n\n The ballot, and any cure affidavit received, are eventually canvassed. The\n\ncanvassing board 34 “must, if the supervisor has not already done so, compare the\n\nsignature” on the voter’s certificate or cure affidavit with the one in the registration\n\n\n\n\n elector on the voter’s certificate with the signature of the elector in the registration\n books or the precinct register . . . .\n\nId. § 101.68(1) (emphasis added). The use of “shall compare” and “at which time” indicate that\nthis duty is mandatory and must be performed when the ballot is received.\n 33\n The majority mistakenly concludes that election officials may sit on a VBM ballot and\ndo nothing with it until it’s canvassed by the canvassing board. To draw this conclusion, the\nmajority assumes that the canvassing board compares the signatures all on its own. See Maj. Op.\nat 14–15 (“And even more problematically, the law did not require canvassing boards to even\nbegin the canvassing of vote-by-mail ballots and check for signature match before noon on the\nday after the election[, even though signature cures must be submitted by 5 p.m. the day before\nthe election].”); id. at 22 (noting that submitting a VBM ballot well before the deadline “still\nwould not guarantee that [a voter] would be notified of any signature mismatch until it was too\nlate to do anything to remedy the problem”). Doing so, the majority overlooks the parts of the\nCode that require the supervisor (1) to immediately compare the signatures after receiving a\nballot and (2) to immediately notify a voter that his ballot has been rejected based on a problem\nwith the signatures.\n 34\n By statute, each county canvassing board consists of the supervisor of elections, a\ncounty court judge, and the chair of the board of county commissioners. Id. § 102.141(1).\n\n\n 66\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 67 of 83\n\n\nbooks “to determine the legality of that vote-by-mail ballot.” 35 Id. §\n\n101.68(2)(c)(1). Canvassing need not occur immediately on receiving a ballot or\n\ncure affidavit: it can begin any time from 15 days before the election to noon of the\n\nday after. Id. § 101.68(2)(a). If a ballot is rejected for a signature mismatch and is\n\nnot cured under the procedure specified in § 101.68(4)(b), it is marked “rejected as\n\nillegal” and is not tabulated, although the ballot itself is preserved. Id. §§\n\n101.68(2)(c)(1), (5).\n\n B.\n\n The District Court reached its decision that the Code provisions relating to\n\n“curing” signature-rejected ballots were applied unconstitutionally because it failed\n\nto comprehend how the statutes operated to notify VBM voters that their ballots\n\nhad been rejected, id. §§ 101.62(1)(a)–(b), and to inform voters of their right to\n\ncure the rejection, id. § 101.68(4)(b).\n\n With all of that clearly laid out in the Code, here is how the District Court\n\ndescribed the statutory process:\n\n The opportunity to cure is the last chance a vote-by-mail voter has to\n save their vote from being rejected and not counted. Florida law\n provides no opportunity for voters to challenge the determination of\n the canvassing board that their signatures do not match, and their\n votes do not count. . . . Even more striking is the fact that under\n Florida law, canvassing boards may begin canvassing of vote-by-mail\n\n 35\n Presumably, this would happen only if the canvassing board received a VBM ballot\nafter canvassing had already begun. Otherwise, the supervisor would have compared the\nsignatures immediately after receiving the ballot, as he or she is required to do. Id. § 101.68(1).\n 67\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 68 of 83\n\n\n ballots at 7 a.m. on the 15th day before the election, but no later than\n noon on the day following the election. Fla. Stat. § 101.68(2)(a).\n Thus, a vote-by-mail voter could mail their ballot in weeks early, but\n the canvassing board could also wait, canvass the ballot the day after\n the election, determine there is a mismatched signature, and toss the\n vote. The voter therefore gets no chance to cure, since curing must be\n done by 5 p.m. the day before the election.\n\nDemocratic Exec. Comm., 2018 WL 5986766, at 2.\n\n The District Court reached the conclusion that the signature-matching\n\nexercise was carried out by the canvassing boards entirely on its own. 36 Nothing in\n\nthe allegations of Plaintiffs’ Complaint or the briefing on Plaintiffs’ motion for a\n\npreliminary injunction warranted this conclusion. Nothing in the Complaint or the\n\nparties’ submissions indicated that VBM voters were “belatedly notified” that the\n\nsignature on their ballots did not match the signature in their registration entry.\n\nThe county supervisors of elections are presumed to have processed VBM ballots\n\nand voters’ cure affidavits in keeping with both the letter and the spirit of the law. 37\n\nNothing in the complaint or the parties’ submissions rebutted that presumption.\n\n A VBM voter waiting until the eleventh hour to submit his ballot ran the risk\n\nthat his ballot might be rejected. VBM voters were on notice that a chain of events\n\nhad to happen before they successfully cured a rejected ballot: (1) they had to\n\n\n\n\n 36\n The majority adopts and endorses this erroneous reading. See Maj. Op. at 14–15, 22.\n 37\n “Ordinarily, we presume that public officials have properly discharged their official\nduties.” Banks v. Dretke, 540 U.S. 668, 696, 124 S. Ct. 1256, 1275 (2004) (quoting Bracy v.\nGramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 1799 (1997)).\n 68\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 69 of 83\n\n\nreceive a rejection notice in the mail, (2) they had to prepare a cure affidavit, and\n\n(3) they had to present the affidavit to the supervisor of elections by 5 p.m. the day\n\nbefore the election. Obviously, these things would take some time, so a VBM\n\nvoter knew that it was risky to submit a VBM ballot near the deadline. A VBM\n\nvoter thus had no one to blame but himself if the time ran out for curing a rejected\n\nballot. See Rosario v. Rockefeller, 410 U.S. 752, 757–58, 93 S. Ct. 1245, 1249–50\n\n(1973) (noting that petitioners could have met the 30-day deadline for enrolling in\n\npolitical party, “but chose not to. Hence, if their plight can be characterized as\n\ndisenfranchisement at all, it was not caused by [the deadline], but by their own\n\nfailure to take timely steps to effect their enrollment”).\n\n * * \n\n In one breath, the District Court held that the signature-matching provision\n\nis arbitrary and thus violated the Equal Protection Clause. See Democratic Exec.\n\nComm., 2018 WL 5986766, at 8. But in the next breath, the Court found that the\n\nsignature-matching provision did not in fact violate the Equal Protection Clause.\n\nIndeed, implicit in its granting relief to the “belatedly notified” VBM voters is the\n\nconclusion that implementing the signature-matching provisions does not violate\n\nthe Equal Protection Clause. Thus, it is constitutionally permissible for the\n\nsupervisors of elections or the canvassing boards to reject a VBM ballot on a\n\nfinding that the signatures on the ballot or cure affidavit and the voter’s registration\n\n\n 69\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 70 of 83\n\n\nentry did not match. 38 What was constitutionally impermissible was to belatedly\n\nnotify a VBM voter of the rejection.\n\n C.\n\n The District Court abused its discretion in ordering that the county\n\nsupervisors of elections allow belatedly notified voters time to cure their ballots.\n\n“A district court abuses its discretion if it . . . applies the law in an unreasonable or\n\nincorrect manner . . . .” Glock v. Glock, Inc., 797 F.3d 1002, 1006 (11th Cir. 2015)\n\n(quoting FTC v. AbbVie Prods. LLC, 713 F.3d 54, 61 (11th Cir. 2013)). The abuse\n\noccurred here because the District Court based its injunctive order on an incorrect\n\nreading of the Election Code, thus applying an incorrect legal standard. 39 And this\n\nCourt, in wrongly assuming that the District Court had a solid legal foundation for\n\nits injunctive order, was wrong to deny the RNSC’s motion to stay the order.\n\n The District Court not only relied on a mistaken reading of the Code, it also\n\ncommitted several constitutional violations in reaching its ultimate decision.\n\n\n\n\n 38\n In fact, the Court endorsed the further use of signature-matching directly within its\norder: if any voter seeking to avail himself of the remedy submits a cure affidavit with Tier 2\nidentification, he is just as subject to the chance of rejection for signature mismatch as a voter in\nthe first instance. If one coin flip is unconstitutional, surely adding another doesn’t solve the\nproblem.\n 39\n As I explained in footnote 16, supra, when analyzing the motion to stay, we must\nevaluate the likelihood that Defendants will succeed on the merits of their appeal. In this appeal,\nthe issue will be whether the District Court abused its discretion by granting the preliminary\ninjunction. Thus, the abuse of discretion is relevant when deciding whether Defendants are\nlikely to prevail on the merits of their appeal.\n 70\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 71 of 83\n\n\n First, in issuing the injunctive order against the Secretary sua sponte without\n\ngiving them notice and an opportunity to be heard on whether the order should\n\nissue, the Court denied them due process of law.\n\n Second, in issuing its injunctive order after the polls had closed, the Court\n\nchanged the rules under which the general election had been conducted, effectively\n\nrewriting the VBM provisions of the Code. This operated to virtually\n\ndisenfranchise some VBM voters—those who would have cured but for the\n\ndeadline and were now unable to submit a cure by the new deadline—and, at the\n\nsame time, to dilute votes cast at the polls, in violation of the Due Process and\n\nEqual Protection Clauses.\n\n Third, in failing to define “belatedly notified,” the Court created its own\n\nstandardless determination for identifying those eligible to vote, in violation of the\n\nEqual Protection Clause.\n\n Fourth, in rewriting the VBM provisions of the Code to eliminate its\n\npurportedly unconstitutional application, the Court dishonored Florida’s separation\n\nof powers doctrine, which prevents courts from rewriting statutes, and thereby\n\nviolated the doctrine of federalism, which precludes federal courts from taking\n\naction that would breach a state’s separation of powers.\n\n I expand on these constitutional errors in turn.\n\n 1.\n\n\n 71\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 72 of 83\n\n\n A reader of the District Court’s injunctive order would assume that Plaintiffs\n\nhad claimed that in belatedly notifying VBM voters that their ballots had been\n\nrejected, the supervisors of elections had infringed a right the voters enjoyed under\n\nthe Fourteenth Amendment, a right they declined to identify. The assumption\n\nwould be false because Plaintiffs made no such claim. The Court invented the\n\nclaim by reframing what Plaintiffs actually alleged, and it did so without informing\n\nthe parties of what was lying in store. Plaintiffs were only attacking the Code’s\n\nsignature-matching scheme; they had no quarrel with the Code’s provisions for\n\nnotifying VBM voters that their ballots had been rejected and explaining how a\n\nrejection could be cured.\n\n Saddling a defendant with a judgment on a claim the plaintiff did not assert,\n\na claim based on a legal theory the plaintiff would have rejected, 40 and doing so\n\nwithout notice to the defendant and affording it an opportunity to be heard violates\n\nthe Due Process Clause of the Fourteenth Amendment. That’s what happened\n\nhere. The Court entered its injunctive order in derogation of the Secretary’s and\n\nthe RNSC’s right to due process.\n\n 2.\n\n\n\n\n 40\n To accept the Court’s position that the signature-matching provisions were valid,\nPlaintiffs would have to abandon their position that the provisions violated the Equal Protection\nClause.\n\n\n 72\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 73 of 83\n\n\n The District Court changed the rules of the election after the polls had\n\nclosed, an impermissible remedy under our decision in Roe v. Alabama. 43 F.3d at\n\n581.41 Changing the rules of an election after the voting is over and the ballots are\n\nbeing counted is an impermissible remedy because it violates rights guaranteed by\n\nthe Fourteenth Amendment in three ways. First, the new rules enfranchise those\n\nwho failed to comply with the rules in existence before the voting began and\n\ntherefore could not legally vote. Second, counting the votes of the newly\n\nenfranchised dilutes the votes submitted in compliance with the existing rules.\n\nThird, changing the rules virtually disenfranchises some who did not vote. Time\n\nconstraints, for example, may have rendered these non-voters unable to comply\n\nwith the existing rules, but they would have voted or cured had they known of the\n\nnew rules.\n\n The first consequence of the District Court’s order, counting votes that\n\nwould not have been cast prior to the rule changes, would amount to “stuff[ing] the\n\nballot box,” id., and would jeopardize the integrity of the election. The second\n\nconsequence, diluting compliant votes under the old rules, would disregard the\n\nCourt’s “obligation to avoid arbitrary and disparate treatment of the members of\n\n\n 41\n Roe involved an Alabama state law that appeared to require absentee ballots to be\neither notarized or signed by two witnesses. It was the past practice in Alabama not to count\nballots that did not meet this requirement. Id. After a closely contested election, a state circuit\ncourt ordered the Secretary of State to count non-notarized and insufficiently witnessed ballots.\nThe District Court issued a conflicting injunction, requiring the Secretary not to comply with the\nstate court order, and we affirmed the order in relevant part. Id. at 583.\n 73\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 74 of 83\n\n\n[the] electorate” and would violate the Equal Protection Clause. Bush, 531 U.S. at\n\n105, 121 S. Ct. at 530. The third consequence, virtually disenfranchising those\n\nwho would have voted (or cured) but for the inconvenience imposed by the\n\npreexisting rules, would deprive those would-be voters of the equal protection of\n\nthe laws. Roe, 43 F.3d at 581.\n\n 3.\n\n Now, onto the problems with belated notice. The District Court’s injunctive\n\norder fails to define “belatedly notified.” What constitutes belated notice, and how\n\nwere the supervisors of elections supposed to determine who was belatedly\n\nnotified?\n\n Start with the substantive standard of belated notice. This must mean “later\n\nthan would in fact allow the voter to cure,” rather than “later than the supervisor of\n\nelections was allowed to wait by statute”: the voter must have received notice at an\n\nhour actually too late to cure, or with an unreasonably low amount of turn-around\n\ntime available, if the order is to include him. Interpreting the order otherwise, to\n\nrule that only persons who were notified later than required by the statute received\n\nbelated notice, would not remedy any constitutional problem with the statute. So\n\nthe most natural reading of the order is that belated notice is a fact-intensive\n\ninquiry turning on the voter’s individual circumstances. When was the voter\n\nnotified? What was he told about the cure procedure—was he sent a cure affidavit,\n\n\n 74\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 75 of 83\n\n\ndirected to its location on the county elections website, simply informed that it was\n\nrequired, or none of the above? What sort of means and capacity—a computer or\n\nfax machine, a few minutes of free time—did he have available to respond quickly,\n\nif necessary? The determination would be easy with respect to some voters—those\n\nwhose ballots originally came in after the 5 p.m. cure affidavit deadline—but\n\nharder for others.\n\n The supervisors of elections were not required to retain any of the\n\ninformation that would help resolve the hard cases of belated notice. Much of it\n\nwould be inherently outside a supervisor’s purview—e.g., when the voter checked\n\nhis mail—so the supervisor would have no idea which voters were actually\n\nbelatedly notified. Likely, many of these possibly belatedly notified voters sent in\n\n(late) cure affidavits. So, supervisors must, for each late cure affidavit already\n\nreceived, determine whether the affiant was actually belatedly notified, in addition\n\nto making this determination for every cure affiant who submitted his affidavit\n\nbetween the issuance of the injunction and its deadline two days later. The\n\ninjunctive order gave supervisors no guidance or standards to apply when making\n\nthese determinations.\n\n This relief is impermissible under Bush v. Gore, in which the Supreme Court\n\nreversed the Florida Supreme Court’s order requiring a hand recount that lacked\n\nuniform standards across counties for determining the intent of the voter. 531 U.S.\n\n\n 75\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 76 of 83\n\n\nat 111, 121 S. Ct. at 533. The Court explained that “[w]hen a court orders a\n\nstatewide remedy, there must be at least some assurance that the rudimentary\n\nrequirements of equal treatment and fundamental fairness are satisfied.” Id. at 109,\n\n121 S. Ct. at 532. Here, non-uniform standards for belated notice, and how it is to\n\nbe determined, are practically inevitable. Some counties may set a cutoff date and\n\ntime to cure. Other counties may ask each voter whether he or she had enough\n\ntime. Still others may assume that the submission of every cure after the deadline\n\nwas due to belated notice rather than dilatory voter behavior and therefore count\n\nthem all. The Court’s failure to dictate a uniform standard for deciding those who\n\nwere or were not belatedly notified is destined, almost assuredly, to result in voters\n\nin identical circumstances being treated differently. Under Bush, it must not.\n\n 4.\n\n The District Court’s injunction functionally writes a new provision into\n\nFlorida’s Election Code as it relates to curing a ballot rejected for want of\n\nmatching signatures. It was not needed; the statutory provisions the Court\n\noverlooked informed VBM voters of everything they needed to know to cast a\n\nballot and have it counted. If the provisions are inadequate, it is the responsibility\n\nof the Florida legislature to refine them.\n\n The Florida Supreme Court would not usurp the legislative prerogative and\n\nrewrite a significant part of the Election Code as the District Court has done. The\n\n\n 76\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 77 of 83\n\n\nseparation of powers doctrine would preclude it from doing so. See, e.g., Fla.\n\nDep’t of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001)\n\n(“Under fundamental principles of separation of powers, courts cannot judicially\n\nalter the wording of statutes where the Legislature clearly has not done so.”);\n\nHawkins v. Ford Motor Co., 748 So. 2d 993, 1000 (Fla. 1999) (“[T]his Court may\n\nnot rewrite statutes contrary to their plain language.”).\n\n Under our Constitution, federal courts must respect the doctrine of\n\nfederalism; it requires the federal courts to respect Florida’s decision to fashion a\n\ngovernment with three coequal branches, legislative, executive, and judicial. As a\n\nsister circuit has said, “Even the narrowest notion of federalism requires us to\n\nrecognize a state’s interest in preserving the separation of powers within its own\n\ngovernment as a compelling interest.” Republican Party of Minn. v. White, 416\n\nF.3d 738, 773 (8th Cir. 2005). The court explained that a “state’s choice of how to\n\norganize its government is ‘a decision of the most fundamental sort for a sovereign\n\nentity.’” Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395,\n\n2400 (1991)).\n\n If the District Court believed the Code’s provisions relating to curing VBM\n\nballots for lack of a signature match violated the Constitution as applied, what\n\ncould it do? The power the Supremacy Clause, see U.S. Const. art. VI, cl. 2,\n\nallows federal courts to review state statutes, but federal courts are limited to\n\n\n 77\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 78 of 83\n\n\nrefusing to apply the provisions they find unconstitutional. See Frandsen, 212 F.3d\n\nat 1235 (“The remedy if the facial challenge is successful is the striking down of\n\nthe regulation . . . .” (citing Stromberg, 283 U.S. at 369–70, 51 S. Ct. at 536)); see\n\nalso Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 154 (1994)\n\n(“American courts have no general power of control over legislatures. Their\n\npower, tout simple, is to treat as null an otherwise relevant statute which they\n\nbelieve to be beyond the powers of the legislature . . . .”). That power does not\n\nextend—as the District Court clearly believed—to prescribing new rules of\n\ndecision on the state’s behalf. See Virginia v. Am. Booksellers Ass’n, 484 U.S.\n\n383, 397, 108 S. Ct. 636, 645 (1988) (“[W]e will not rewrite a state law to conform\n\nit to constitutional requirements.”). 42\n\n The District Court could impose no remedy other than an injunction\n\nprohibiting the State’s enforcement of the provisions it found offensive to the U.S.\n\nConstitution. The Court couldn’t impose that remedy, though, because it might\n\nleave out in the cold the VBM voters the Court wanted to protect—those belatedly\n\n\n\n 42\n Remarkably, courts cannot rewrite statutes even by striking down language, rather than\nby adding it. Take severability clauses—which the statutes at issue here noticeably lack. In\nWhole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised (June 27, 2016), for\nexample, the state defendant argued for a “narrowly tailored judicial remedy,” not facial\ninvalidation, by pointing to a severability clause in Texas’s abortion statute. Id. at 2318−19. But\nthe Supreme Court responded that a “severability clause is not grounds for a court to ‘devise a\njudicial remedy that entails quintessentially legislative work.’” Id. at 2319 (alterations omitted)\n(quoting Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329, 126 S. Ct. 961, 968\n(2006)).\n 78\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 79 of 83\n\n\nnotified. The Court didn’t identify the provisions “relat[ing] to curing\n\nmismatched-signature ballots” that were unconstitutionally applied. Those\n\nprovisions are intertwined with other VBM provisions, so the vindication of the\n\nrights of the voters belatedly notified might require the Court to enter an order that\n\nwould bring down the VBM scheme altogether, a result neither Plaintiffs nor the\n\nbelatedly notified voters could accept.\n\n At the end of the day, the District Court should have been restrained by\n\nfederalism: the Court should not have taken it upon itself to monitor the operation\n\nof Florida’s Election Code, fine-tuning its provisions here and there. See Curry v.\n\nBaker, 802 F.2d 1302, 1314 (11th Cir. 1986) (“Although federal courts closely\n\nscrutinize state laws whose very design infringes on the rights of voters, federal\n\ncourts will not intervene to examine the validity of individual ballots or supervise\n\nthe administrative details of a local election.”).\n\n V.\n\n This case highlights the many problems that arise when a federal court\n\noversteps its Article III authority. Here, the District Court overstepped by\n\nreframing Plaintiffs’ claim sua sponte and without notice to the parties. It also\n\noverstepped by granting relief on the reframed claim, relief that Plaintiffs never\n\nrequested. And finally, the District Court overstepped by effectively rewriting the\n\nElection Code.\n\n\n 79\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 80 of 83\n\n\n EXHIBIT 1\n\n(Our Order denying the motion for stay to be attached to opinion)\n\n\n\n\n 80\n\nCase: 18-14758 Date Filed: 02/15/2019 Page: 81 of 83\n\nCase: 18-14758 Date Filed: 02/15/2019 Page: 82 of 83\n\nCase: 18-14758 Date Filed: 02/15/2019 Page: 83 of 83", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368512/", "author_raw": "TJOFLAT, Circuit Judge, dissenting"}]}	TJOFLAT	MARTIN	ROSENBAUM	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4591259/	Published	1	1	0	0	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,310	UNITED STATES of America, Plaintiff-Appellee, v. Matthew Brian CANIFF, Defendant-Appellant.	United States v. Matthew Bryan Caniff	2019-02-15	17-12410	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Marcus, Newsom, Ebel", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888023/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888024/", "author_raw": ""}, {"type": "010combined", "text": "Case: 17-12410 Date Filed: 02/15/2019 Page: 1 of 42\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-12410\n ________________________\n\n D.C. No. 3:16-cr-00060-BJD-JRK-1\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\nversus\n\nMATTHEW BRIAN CANIFF,\n\n Defendant-Appellant.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n (February 15, 2019)\n\nBefore, MARCUS, NEWSOM, and EBEL, ∗ Circuit Judges.\n\nEBEL, Circuit Judge:\n\n In this direct criminal appeal, Defendant Matthew Caniff challenges his\n\nconvictions for three federal child sex offenses. Having jurisdiction under 28\n\n\n\n∗The Honorable David M. Ebel, Senior United States Circuit Judge for the United States Court\nof Appeals for the Tenth Circuit, sitting by designation.\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 2 of 42\n\n\nU.S.C. § 1291, we AFFIRM each conviction. In doing so, we hold, among other\n\nthings, that Caniff’s text messages asking a person he thought was a minor to send\n\nhim sexually explicit pictures of herself can support a conviction for making a\n\n“notice” to receive child pornography in violation of 18 U.S.C. § 2251(d)(1)(A).\n\n I. BACKGROUND\n\n The evidence at trial, viewed in the light most favorable to the jury’s verdict,\n\nsee United States v. Dixon, 901 F.3d 1322, 1335 (11th Cir. 2018), cert. denied,\n\n2019 WL 113506 (U.S. Jan. 7, 2019), established the following: St. John’s\n\nCounty, Florida law enforcement initiated an operation to locate individuals who\n\nhave a sexual interest in children and who were willing to act on that interest. As\n\npart of the operation, FBI Special Agent Abbigail Beccaccio posed as “Mandy,” a\n\nthirteen-year-old girl, on “Whisper.” Whisper is an online website and cellphone\n\napplication “that allows users to text or communicate anonymously with other\n\nusers.” (Aplt. Br. 3.) Whisper’s “terms of use” provide that “individuals who use\n\nWhisper must be at least 13 years of age . . . and that if you are between the ages of\n\n13 and 18, that you should be supervised by a parent.” (Doc. 79 at 35-36.)\n\n On the afternoon of March 31, 2016, Agent Beccaccio posted on Whisper a\n\nphoto of another FBI employee taken when that employee was in her early\n\ntwenties. The FBI had “age regress[ed]” that photo to make the person in it look\n\n“more childlike and youthful.” (Doc. 79 at 37-38.) The photo showed “Mandy”\n\n\n 2\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 3 of 42\n\n\ndressed in a heavy sweatshirt or coat worn over another shirt; Mandy was not\n\ndressed or posed in any sexually suggestive manner. Agent Beccaccio posted this\n\npicture with the words: “Spring Break! And I’m BORED!!!!!!” superimposed over\n\nthe photo. (Gov’t ex. 1.)\n\n Caniff, a thirty-two-year-old pharmacy technician, responded, stating “Let’s\n\ndo something then,” followed by a “winky smiling face” (Doc. 79 at 41, Gov’t ex.\n\n2 at 1). Mandy asked if Caniff was on spring break too; he responded that he was\n\n“[t]otally off today.” (Doc. 79 at 42-43; Gov’t ex. 2 at 2.) Caniff wanted to “do\n\nsomething water related.” (Gov’t ex. 2 at 3.) Mandy asked Caniff if he was old\n\nenough to drive; Caniff said he was; Mandy responded: “Sweet!! I’m not old\n\nenough too [sic].” (Id. at 4.) Caniff then asked Mandy if she had a bikini and was\n\nit cute. (Id. at 5.) Caniff soon agreed with Mandy to leave Whisper and instead\n\ntext message each other.\n\n Caniff and Mandy exchanged text messages the rest of that afternoon and\n\nevening. Although Mandy told Caniff several times at the outset of their text\n\nmessaging that she was thirteen years old, Caniff’s text messages to Mandy turned\n\nsexual and eventually became quite explicit and graphic. Caniff also sent Mandy\n\nseveral pictures of his penis and asked her to send him pictures of her genitalia and\n\nof her masturbating. When Mandy asked if she could get in trouble, Caniff\n\n\n\n\n 3\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 4 of 42\n\n\nresponded that “[t]he only one of us the [sic] could get in trouble would be me.”\n\n(Gov’t ex. 3 at 3.) Eventually, Mandy agreed to have sex with Caniff.\n\n Before driving an hour and a half to meet Mandy, who said she was home\n\nalone, Caniff asked Mandy if she was a cop. She responded, “[l]ike 13 year old\n\n[sic] are cops!” (Id. at 14.) Caniff said Mandy “could be pretending to be 13.”\n\n(Id.) Mandy said she was not. Mandy asked Caniff what he was bringing her; he\n\nsaid he had Xanax to share with her. Fate almost intervened for Caniff when his\n\ncar broke down on his drive to Mandy. But he was able to get his car working\n\nagain and arrived at Mandy’s home at approximately 1:30 a.m. where he was\n\narrested.\n\n After his arrest, Caniff consented to agents searching his computer, cell\n\nphone and other electronic devices, as well as his vehicle. Agents found only adult\n\npornography on Caniff’s phone, and no child pornography anywhere. Caniff also\n\ngave agents information that would enable them to access his social media\n\naccounts; officers found nothing incriminating there, either. There was Xanax in\n\nCaniff’s wallet, which Caniff said he found in the trash at the pharmacy where he\n\nworked.\n\n After giving Caniff Miranda 1 warnings, officers interviewed him. During\n\n\n\n1\n Miranda v. Arizona, 384 U.S. 436 (1966).\n\n\n 4\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 5 of 42\n\n\nthat interview, Caniff acknowledged that Mandy had told him she was thirteen, but\n\nhe stated that on the Whisper “application, it says that you have to be at least 17 or\n\n18 to download,2 so I assumed that that was the age. I thought that there was some\n\nkind of role-playing going on.” (Gov’t ex. 27A at 5 (footnote added); see also id.\n\nat 9-10 (“I thought we were role-playing . . . because . . . the site says that you have\n\nto be an adult . . . , so I believe that you have to be an adult. . . . I assumed that she\n\nwas role-playing. . . . I assumed that I wasn’t meeting a juvenile.”).)\n\n The United States charged Caniff with three offenses: 1) attempting to entice\n\na minor to engage in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b);\n\n2) advertising for child pornography, in violation of 18 U.S.C. § 2251(d)(1)(A) and\n\n(2)(B); and 3) attempted production of child pornography, in violation of 18 U.S.C.\n\n§ 2251(a). For these federal offenses, a minor is defined as “any person under the\n\nage of eighteen years.” 18 U.S.C. § 2256(1). Count 1 relied on Florida law, which\n\ndefines a minor to be under sixteen years of age. These offenses required the\n\nGovernment to prove, not that there was an actual child victim, but that Caniff\n\nbelieved he was texting with a minor. See United States v. Rothenberg, 610 F.3d\n\n621, 626 (11th Cir. 2010) (§ 2422(b)); United States v. Lee, 603 F.3d 904, 913\n\n(11th Cir. 2010) (§ 2251(a)). At trial, Caniff’s primary defense was that he\n\n\n\n2\n As noted previously, Whisper only requires users to be thirteen years old or older. There is no\nevidence about how, or if, that age restriction is enforced.\n 5\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 6 of 42\n\n\nbelieved he was, instead, communicating with an adult who was role playing as a\n\nthirteen-year-old. The jury rejected that defense and convicted Caniff of each of\n\nthe three charged offenses. The district court imposed three concurrent fifteen-\n\nyear sentences, followed by five years’ supervised release.\n\n II. DISCUSSION\n\nA. Caniff’s text messages requesting that Mandy send him sexually explicit\nphotos can support an 18 U.S.C. § 2251(d)(1)(A) conviction for making a\n“notice” seeking to receive child pornography\n\n Caniff challenges his Count 2 conviction for violating 18 U.S.C.\n\n§ 2251(d)(1)(A) and (2)(B), which provides:\n\n (d)(1) Any person who, in a circumstance described in paragraph (2),\n knowingly makes, prints, or publishes, or causes to be made, printed,\n or published, any notice or advertisement seeking or offering—\n\n (A) to receive, exchange, buy, produce, display, distribute,\n or reproduce, any visual depiction, if the production of\n such visual depiction involves the use of a minor engaging\n in sexually explicit conduct and such visual depiction is of\n such conduct;\n\n ....\n\n shall be punished as provided under subsection (e).\n\n (2) The circumstance referred to in paragraph (1) is that--\n\n ....\n\n (B) such notice or advertisement is transported using any\n means or facility of interstate or foreign commerce or in\n or affecting interstate or foreign commerce by any means\n including by computer or mailed.\n 6\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 7 of 42\n\n\n\n\n(Emphasis added.)\n\n The trial court, without objection, used the statutory language to instruct\n\njurors that the Government had to prove beyond a reasonable doubt, among other\n\nelements, “that the defendant knowingly made, printed, or published or caused to\n\nbe made, printed, or published any notice or advertisement,” and “that such notice\n\nor advertisement sought or offered to receive . . . any visual depiction . . . that . . .\n\ninvolved . . . a minor child engaged in sexually explicit conduct.” (Doc. 80 at 132-\n\n33.) Jurors deliberated for thirty minutes before they sent the court a question,\n\ninquiring: “What is the definition of the term ‘notice’ in Count Two, or should we\n\ndetermine that definition?” (Id. at 144.) The district court discussed the jury’s\n\nquestion with counsel and then, without objection, responded to the jury: “You\n\nshould determine the definition based upon the instructions you have.” (Id. at\n\n145.) The jury deliberated another half hour and then returned a verdict convicting\n\nCaniff of Count 2, as well as the other two counts.\n\n On appeal, Caniff asserts only a single substantive argument, contending\n\nthat there was insufficient evidence for a reasonable jury to find that the text\n\nmessages he sent just to Mandy asking her to send him sexually explicit photos of\n\nherself were a “notice or advertisement” for purposes of § 2251(d)(1)(A). We\n\nreview that argument de novo. See Dixon, 901 F.3d at 1335 (reviewing de novo\n\nwhether evidence was sufficient to support conviction); see also United States v.\n 7\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 8 of 42\n\n\nJim, 891 F.3d 1242, 1250-51 (11th Cir. 2018) (addressing statutory construction de\n\nnovo), petitions for cert. filed (U.S. Jan. 10, 2019) (Nos. 18-891 and 18-895). We\n\nneed not decide whether a jury could find that Caniff’s text messages were\n\n“advertisements” because we conclude, instead, that a reasonable jury could find\n\nthat those text messages were “notices” which § 2251(d)(1) made criminal.\n\n The parties agree that, because the statute does not define “notice,” that term\n\nmust be given its ordinary or common, everyday meaning. This is consistent with\n\nthe approach taken by other circuits addressing similar questions under\n\n§ 2251(d)(1), see, e.g., United States v. Gries, 877 F.3d 255, 260 (7th Cir. 2017)\n\npetition for cert. filed (U.S. Jan. 7, 2019) (No. 18-858); United States v. Franklin,\n\n785 F.3d 1365, 1367-68 (10th Cir. 2015), as well as consistent with the rules of\n\nstatutory interpretation generally, see Barton v. U.S. Attorney Gen., 904 F.3d 1294,\n\n1298 (11th Cir. 2018) (citing Sebelius v. Cloer, 569 U.S. 369, 376 (2013)), petition\n\nfor cert. filed, — U.S. — (U.S. Dec. 4, 2018) (No. 18-725).\n\n Black’s Law Dictionary defines “notice” to include “[a] written or printed\n\nannouncement.” Notice, Black’s Law Dictionary (10th ed. 2014); see also Notice,\n\nMerriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/notice\n\n(lasted visited December 12, 2018). See generally Wisconsin Cent. Ltd. v. United\n\nStates, 138 S. Ct. 2067, 2070-71 (2018) (looking to dictionary definition in\n\ndetermining ordinary meaning of a statutory phrase). Dictionary.com indicates\n\n\n 8\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 9 of 42\n\n\nthat a “notice” can be “a note, placard, or the like conveying information or a\n\nwarning.” Notice, htpps://www.dictionary.com/browse/notice (lasted visited\n\nDecember 12, 2018). The Seventh Circuit noted that Webster’s Third New\n\nInternational Dictionary (ed. 2002), similarly defines “notice” to include “a\n\n‘warning or intimation of something,” as does the New Oxford American\n\nDictionary (3d ed. 2010), which defines “notice,” inter alia, “as a ‘notification or\n\nwarning of something.’” Gries, 877 F.3d at 260 (7th Cir.). A jury could find that\n\nCaniff’s text messages to Mandy seeking sexually explicit photos fit this common\n\nmeaning of “notice.”\n\n We disagree with Caniff’s argument that a “notice” must be sent to the\n\ngeneral public or at least to a group of people. The most common usage of the\n\nword “notice” is not limited exclusively to a public or group component. A notice\n\ncan, of course, be made to the general public. Caniff points to such an example of\n\n“notice” cited by the Merriam-Webster Dictionary—newspaper notices of\n\nmarriages and deaths. But a public component is not, by definition, required. The\n\nTenth Circuit cited eighteen definitions of “notice” taken from Webster’s New\n\nThird International Dictionary (1993), noting that none of those definitions\n\nrequired a “public” component. Franklin, 785 F.3d at 1368.3 Thus, “[i]n everyday\n\n\n3\n In Franklin, the Tenth Circuit, nevertheless, assumed for purposes of its analysis, without\ndeciding, that 18 U.S.C. § 2251(d)(1)’s use of the term “notice” had a public component. 785\nF.3d at 1369.\n 9\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 10 of 42\n\n\nparlance,” notice “is not limited to warnings or notifications disseminated to the\n\ngeneral public, and nothing about the context in which [the term notice] is used\n\nhere [in § 2251(d)] suggests a more limited meaning.” Gries, 877 F.3d at 260 (7th\n\nCir.) (bracketed material added).\n\n There are numerous examples where “notice” is given from one individual\n\nor entity to another. For instance, a utility company might send an individual\n\ncustomer “notice” that the utility is going to turn off that specific customer’s\n\nservice. Black’s Law Dictionary uses the example of a lease’s requirement that a\n\ntenant give his landlord thirty days’ written “notice” before vacating the leased\n\npremises. Notice, Black’s Law Dictionary (10th ed. 2014). An employee might\n\nnotify (or give notice to) his boss that the employee will not be at work tomorrow.\n\nOne might notify a neighbor to get off the lawn or be sued for trespass, and a\n\nparent can give notice to a child that if he does not turn down his music, there will\n\nbe consequences.\n\n These common uses of “notice” do not require the involvement of the public\n\nor a group, and there is no indication that Congress intended any different use of\n\n“notice” in § 2251(d)(1). In fact, Congress used extraordinarily broad language in\n\nthis provision. Congress did not include any adjective in § 2251(d)(1) to limit\n\n“notice,” and certainly did not add “public” to modify “notice” —as one might\n\nexpect Congress to have done had it wished to exclude private communications\n\n\n 10\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 11 of 42\n\n\nfrom the statute’s coverage. Although this case involves a form of communication\n\nthat was not in existence when the provision was written, private person-to-person\n\ncommunications have existed as long as the written word. And reading § 2251(d)\n\nto include text messages within its reach fits precisely within the category of\n\nstatutory language that Justice Scalia has embraced as “encompassingly broad\n\nlanguage that comes to be applied to technology unknown when the operative\n\nwords took effect.” A. Scalia & B. Garner, Reading Law: The Interpretation of\n\nLegal Texts 86-87 (2012).\n\n Indeed, instead of limiting the section’s application to notice provided to a\n\ngroup or to the public at large, Congress used more expansive language,\n\nproscribing “any notice.” (Emphasis added.) See Gries, 877 F.3d at 260 (7th Cir.)\n\n(“The phrase ‘any notice or advertisement’ in § 2251(d) casts a wide net for this\n\noffense.”). As we have often had occasion to say, when interpreting a statute\n\n“any” means “all.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir.\n\n1997) (“[T]he adjective ‘any’ is not ambiguous; it has a well-established meaning.\n\n. . . Congress did not add any language limiting the breadth of that word, so ‘any’\n\nmeans all.” (internal quotation marks omitted)); see also Laperriere v. Vesta Ins.\n\nGrp., Inc., 526 F.3d 715, 726 (11th Cir. 2008) (“[T]he term ‘any’ in a statute has a\n\n‘broad,’ ‘powerful,’ and ‘expansive’ meaning; it does not mean ‘some’ or ‘all but a\n\nfew,’ but instead means ‘all.’”) (internal quotation marks omitted); CBS Inc. v.\n\n\n 11\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 12 of 42\n\n\nPrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir. 2001) (“[R]ead\n\nnaturally, the word ‘any’ has an expansive meaning, that is, ‘one or some\n\nindiscriminately of whatever kind.’”) (internal quotation marks omitted). The use\n\nof “any” directs us to interpret “notice” as broadly as the word will bear.\n\nFurthermore, § 2251(d)(1)’s language explicitly focuses only on the defendant’s\n\nconduct in making, printing or publishing a “notice,” and does not address at all\n\nthe audience receiving the notice.\n\n Nor does the phrase “make . . . notice” require a public audience. Perhaps\n\nit’s an awkward turn of phrase that one wouldn’t use in everyday parlance, but it\n\ncannot be described as specifying any particular form of communication. To the\n\ncontrary, Black’s Law Dictionary defines “make” as “caus[ing] (something) to\n\nexist <to make a record>.” Black’s Law Dictionary (10th ed. 2014); see also\n\nRandom House College Dictionary (1982) (“to write or compose, as a poem”).\n\nThus, as the Supreme Court has said, “[w]hen ‘make’ is paired with a noun\n\nexpressing the action of a verb, the resulting phrase is ‘approximately equivalent in\n\nsense’ to that verb.” Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S.\n\n135, 142 (2011). In other words, “to make any notice” simply means “to notify,”\n\nand Congress did not constrain in any way how the defendant could notify his\n\nrecipient or recipients that he was seeking child pornography. See id.\n\n Caniff points out that Congress proscribed “any notice or advertisement,”\n\n\n 12\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 13 of 42\n\n\nand advertisement is commonly defined as “public notice.” We have no occasion\n\nhere to address what constitutes an “advertisement” for purposes of § 2251(d)(1).\n\nBut Caniff’s contention—that an “advertisement” is a “public notice”—cuts\n\nagainst his position because it implies that a simple notice without the adjective\n\n“public” is still a notice, needing only the addition of a public audience to be\n\nelevated to an advertisement. If the common, ordinary use of “notice” inherently\n\nrequires a public component, as Caniff argues, there would be no need ever to\n\nmodify notice with the adjective “public.” Furthermore, if both notice and\n\nadvertisement mean “public notice,” then these two terms are largely redundant,\n\nand we are reluctant to conclude that two separate words in a statute are redundant.\n\nCf. United States v. Harrison, 357 F.3d 314, 315, 321-22 (3d Cir. 2004) (rejecting,\n\nin the context of a prior version of U.S.S.G. § 2G2.2(b)(5), that “notice” requires a\n\npublic audience because “if the meaning of ‘notice’ comprehended that it was\n\n‘public,’ it would not be necessary to modify the definition of ‘announcement’ by\n\ndesignating it as a ‘public’ notice”), vacated on other grounds, 543 U.S. 1102\n\n(2005). We conclude Congress must have, instead, meant that each of those\n\nterms—“notice or advertisement”—had an independent meaning. That is\n\nparticularly true here because Congress separated the terms notice and\n\nadvertisement by the word “or.” See Loughrin v. United States, 573 U.S. 351, 357\n\n(2014) (rejecting interpretation that statute’s two clauses, which were separated by\n\n\n 13\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 14 of 42\n\n\n“or,” meant the same thing; stating that the “ordinary use” of “or” “is almost\n\nalways disjunctive, that is, the words it connects are to be given separate\n\nmeanings” (quoting United States v. Woods, 571 U.S. 31, 45 (2013)).4\n\n For these reasons, we reject Caniff’s argument that “notice” requires a\n\npublic or group component. Instead, “notice” can commonly and ordinarily\n\ninclude one-on-one communications like the text messages at issue here. 5\n\n Courts applying similar language in the sentencing guidelines have reached\n\na like conclusion. U.S.S.G. § 2G2.2(c)(1), for example, provides a cross-reference\n\nthat essentially enhances a defendant’s offense level “[i]f the offense involved\n\ncausing, transporting, permitting, or offering or seeking by notice or advertisement,\n\na minor to engage in sexually explicit conduct . . . for the purpose of transmitting a\n\nlive visual depiction of such conduct.” (Emphasis added.) Courts have held that\n\nfor purposes of that sentencing guideline, “notice” includes one-on-one\n\n\n4\n For the first time in response to one of the Government’s Fed. R. App. P. 28(j) letters, Caniff\ndirectly invokes the statutory interpretative canon “noscitur a sociis” (“statutory terms are often\nknown by the company they keep,” Lagos v. United States, 138 S. Ct. 1684, 1688 (2018)), as\nwell as “negative implication,” to argue, without any analysis, that “§ 2251(d) requires a public\ncomponent.” (Caniff’s Nov. 1, 2018, response.) That argument is not particularly helpful here\nto define one of two statutory terms. See Franklin, 785 F.3d at 1369 (10th Cir.) (rejecting\napplication of noscitur a sociis to define “advertisement” and “notice” under § 2251(d)). See\ngenerally Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280,\n288 (2010) (stating that application of noscitur a sociis canon was not persuasive in that case\nbecause “list of three items, each quite distinct from the other no matter how construed, is too\nshort to be particularly illuminating”).\n5\n Caniff does not assert any other arguments regarding the meaning of “notice,” so we address\nonly his “public” component argument.\n\n\n 14\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 15 of 42\n\n\ncommunications as emails and instant messaging. See United States v. Long, 304\n\nF. App’x 982, 986 (3d Cir. 2008) (unpublished) (holding instant messaging\n\nqualified as “notice” for purposes of § 2G2.2(c)’s cross reference). Long relied on\n\nHarrison, in which the Third Circuit held that a prior version of U.S.S.G.\n\n§ 2G2.2(b)(5), which enhanced an offense level when “a computer was used for\n\nthe transmission of . . . a notice or advertisement of” child pornography, applied to\n\nemails the defendant exchanged with an undercover police officer. 357 F.3d at\n\n315, 321-22.\n\n Our conclusion—that “notice,” for purposes of § 2251(d)(1), is broad\n\nenough to include individually directed text messages like the ones at issue here—\n\nis bolstered by the “comprehensive regulatory scheme” Congress enacted to\n\n“criminaliz[e] the receipt, distribution, sale, production, possession, solicitation\n\nand advertisement of child pornography.” United States v. Parton, 749 F.3d 1329,\n\n1330 (11th Cir. 2014) (internal quotation marks omitted) (addressing § 2251(a)).\n\nWhen Congress enacted what is now § 2251(d) (which was originally designated\n\nas § 2251(c), see United States v. Pabon-Cruz, 391 F.3d 86, 88 n.2 (2d Cir. 2004)),\n\nCongress noted that, “[o]f all of the crimes known to our society, perhaps none is\n\nmore revolting than the sexual exploitation of children, particularly for the\n\npurposes of producing child pornography.” H.R. Rep. No. 99-910, 99th Cong., 2d\n\nSess. (1986). Congress’s “clear statutory purpose” was to “eradicat[e] the child-\n\n\n 15\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 16 of 42\n\n\npornography market.” United States v. Peterson, No. CR 12-228-GW, 2015 WL\n\n13657215, at 5 (C.D. Cal. Mar. 20, 2015) (unreported); see also United States v.\n\nChristie, 570 F. Supp. 2d 657, 665 (D. N.J. 2008) (recognizing Congress’s\n\n“primary intent” in enacting § 2251(d)(1) was “to eliminate the exchange of child\n\npornography”). “Congress surely did not intend to limit [§ 2251(d)(1)’s] reach to\n\npedophiles who indiscriminately advertise through traditional modes of\n\ncommunication like television or radio. Congress was trying to capture all\n\nadvertisements or notices targeting individuals interested in obtaining or\n\ndistributing child pornography.” Franklin, 785 F.3d at 1369-70 (10th Cir.).\n\n While Congress, in 1986, probably did not imagine the prevalence today of\n\ncell phones and the ease with which sexual predators can reach out to individual\n\nchildren to obtain child pornography, the language Congress used in § 2251(d)(1)\n\nis broad enough to encompass such conduct. Furthermore, this conduct goes to the\n\nheart of Congress’s purpose in enacting § 2251(d)(1), to dry up the child\n\npornography market. Once a predator is able to obtain such child pornography\n\ntexted to him, he can quickly and easily disseminate it to countless others.\n\nProscribing his doing so serves Congress’s purpose in enacting § 2251(d)(1).\n\n Through the one-on-one electronic communications at issue here, a sexual\n\npredator can more easily isolate and prey on a single vulnerable child victim than if\n\nhe sent a widely disseminated notice to many potential victims. We cannot\n\n\n 16\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 17 of 42\n\n\nimagine that Congress intended to leave such a loophole in its otherwise\n\ncomprehensive regulation of child pornography. Such a loophole would leave the\n\nmost vulnerable of the victims of pedophilia unprotected against the most effective\n\nand hardest to detect predatory conduct. That would make no sense at all in a\n\nstatute that was intended to have a broad and comprehensive reach. See Gries, 877\n\nF.3d at 260 (7th Cir.).\n\n For all these reasons, we conclude that Caniff’s text messages to thirteen-\n\nyear-old Mandy asking her for sexually explicit pictures of herself can support the\n\njury finding that he made “notices” that he desired to receive child pornography.\n\n It may have been preferable for the district court here to have provided the\n\njury with a legal definition of “notice.” But Caniff did not object to the court using\n\njust the statutory terms to instruct the jury, nor did he object to the court’s decision\n\nto respond to jurors’ inquiry during deliberations by indicating that they should\n\ndetermine the definition of “notice.” Nor has Caniff argued on appeal that the\n\ndistrict court made any legal error in submitting this term to the jury for its\n\ndetermination. That issue is, consequently, not presented to us and we, thus, do not\n\naddress it in this appeal.\n\n We conclude that, in light of the district court’s instructions given here, there\n\nwas sufficient evidence for the jury to find that Caniff’s text messages to Mandy\n\nrequesting photos of her engaging in sexually explicit conduct were “notices”\n\n\n 17\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 18 of 42\n\n\nmade criminal under § 2251(d)(1).\n\nB. There was sufficient evidence for a jury to find that Caniff believed Mandy\nwas thirteen\n\n Caniff next challenges each of his three convictions, arguing that, in light of\n\nhis defense that he believed that he was text messaging with an adult woman who\n\nwas role playing the part of a thirteen-year-old, there was insufficient evidence for\n\nthe jury to find that he believed he was texting a minor. “We review de novo the\n\nsufficiency of the evidence, . . . view[ing] the evidence in the light most favorable\n\nto the government and draw[ing] all reasonable inferences and credibility choices\n\nin favor of the jury’s verdict.” Dixon, 901 F.3d at 1335 (internal quotation marks\n\nand citation omitted).\n\n We will not reverse unless no reasonable trier of fact could find guilt\n beyond a reasonable doubt. It is not our function to make credibility\n choices or to pass upon the weight of the evidence. Instead, we must\n sustain the verdict where there is a reasonable basis in the record for it.\n\nUnited States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010) (citations, internal\n\nquotation marks omitted).\n\n There is a reasonable basis in this record to support the jury’s finding that\n\nCaniff believed Mandy was a minor. During their exchange of text messages,\n\nMandy expressly told Caniff several times that she was thirteen. See United States\n\nv. Rutgerson, 822 F.3d 1223, 1228-30, 1232-33 (11th Cir. 2016) (holding there\n\nwas sufficient evidence for jury to find defendant believed he was electronically\n\n\n 18\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 19 of 42\n\n\nconversing with fifteen-year-old because she told him in her emails and text\n\nmessages that she was fifteen); United States v. Yost, 479 F.3d 815, 819 (11th Cir.\n\n2007) (per curiam) (holding there was sufficient evidence for jury to find that the\n\ndefendant acted with specific intent to persuade a minor to engage in criminal\n\nsexual activity where “both girls told Yost they were under-age multiple times”).\n\nIn addition, a jury could find that much of Mandy’s text messages suggested that\n\nshe was thirteen—being on spring break, not old enough to drive, and being\n\nsexually inexperienced. Furthermore, there was nothing in their text messages that\n\nexpressly or even inferentially suggested that Mandy was an adult or that either\n\nCaniff or Mandy were only role playing.\n\n To be sure, there was some other evidence from Caniff after his arrest where\n\nhe professed to believe Mandy was an adult who was role playing to be a minor—\n\nCaniff’s statements to police, for example, during his interview immediately after\n\nhis arrest—from which the jury could have found instead that Caniff thought\n\nMandy was an adult role-playing as a thirteen-year-old. But at the very most, that\n\nsets up conflicting evidence. However, we must on this appeal take the evidence\n\nin the light most favorable to the government and ask only if there was enough, if\n\nthat evidence was believed, to cause a reasonable jury to convict. In light of that,\n\nwe must uphold Caniff’s convictions. See Farley, 607 F.3d at 1300, 1333-34\n\n(holding evidence was sufficient for trial court conducting bench trial to find that\n\n\n 19\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 20 of 42\n\n\ndefendant who believed he was texting a mother about having sex with her and her\n\nten-year-old daughter “was ‘for real,’ and to disbelieve his insistence at trial that it\n\nwas all a fantasy”); Yost, 479 F.3d at 819 (holding there was sufficient evidence\n\nfor jury to find that defendant had specific intent to persuade minor to engage in\n\ncriminal sexual activity, despite his assertion that “he believed he was\n\ncommunicating with adult women role-playing as minors”).\n\nC. The district court did not abuse its discretion in permitting Detective\nGreene’s challenged testimony\n\n Lastly, Caniff challenges Detective Greene’s testimony regarding the\n\ncontents of Caniff’s cell phone. After Caniff’s arrest, Detective Greene\n\ninterviewed Caniff and searched his cell phone. On direct examination, the\n\ndetective testified that on Caniff’s cell phone he found pictures of a penis and the\n\ntext messages that Caniff and Mandy exchanged. During cross-examination,\n\ndefense counsel asked Detective Greene if he found anything else on Caniff’s cell\n\nphone:\n\n Q. . . . Other than that, there was nothing else in the phone of any\n evidentiary value, correct?\n\n A. In reference to this case, no -- or, I mean --\n\n Q. In reference to anything.\n\n A. -- any other case that I knew of, yes.\n\n Q. There was no other illegal activity - - even if that’s illegal activity,\n there was no illegal activity in the phone, correct?\n 20\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 21 of 42\n\n\n\n\n A. Correct.\n\n Q. Okay. There was no child pornography in his phone, correct?\n\n A. Correct.\n\n Q. There were no chats on his phone that were inappropriate or illegal,\n correct?\n\n A. Correct.\n\n Q. Okay. The only thing found on his phone was adult pornography,\n correct?\n\n A. To the best of my knowledge, yes.\n\n Q. Okay. And nothing illegal with what he had, correct?\n\n A. Correct.\n\n(Doc. 80 at 23.) On redirect, the prosecutor asked:\n\n Q. Okay. Now [defense counsel] asked you if there was evidence of\n any -- I think she said there was no -- she said there was no evidence of\n any illegal activity in the phone.\n\n Is it your understanding that the text messages are evidence of\n illegal activity that is what brings us here today?\n\n A. Yes.\n\n [Defense counsel]: Objection, Your Honor. He’s asking for an\n opinion. That’s the whole issue in this courtroom today.\n\n THE COURT: Give me just a moment.\n\n I’ll overrule the objection. You may answer the question,\n Detective.\n\n\n 21\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 22 of 42\n\n\n THE WITNESS: Thank you.\n\n I assumed aside from what we were here to discuss today, but\n yes, I found nothing else that was apparent -- apparently illegal in the\n phone outside of this.\n\n BY [Prosecutor]:\n\n Q. But you gathered the evidence of the text messages.\n\n A. Yes.\n\n Q. And based on the judge’s ruling, you can answer. Was that, in your\n opinion --\n\n A. Yes.\n\n Q. -- evidence of illegal activity.\n\n A. Yes.\n\n Q. And the same question for the photos of the penises that were sent\n to Agent Beccaccio.\n\n Is it -- based on your training and --\n\n [Defense counsel]: Your honor, same objection.\n\n THE COURT: Same ruling.\n\n BY [Prosecutor]:\n\n Q. Based on your training as a law enforcement officer, did you deem\n those to be evidence of illegal activity?\n\n A. Yes.\n\n(Doc. 80 at 25-26.)\n\n We review the district court’s evidentiary ruling for an abuse its discretion.\n 22\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 23 of 42\n\n\nSee United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011) (per curiam).\n\nCaniff argues primarily that this testimony violated Fed. R. Evid. 704(b), which\n\n“[i]n a criminal case,” precludes an expert’s “opinion about whether the defendant\n\ndid or did not have a mental state or condition that constitutes an element of the\n\ncrime charged or of a defense. Those matters are for the trier of fact alone.”6 But\n\nDetective Greene was never offered or qualified as an expert witness. “[J]ust\n\nbecause a lay witness’s position and experience could have qualified him for\n\nexpert witness status does not mean that any testimony he gives at trial is\n\nconsidered ‘expert testimony.’ Lay witnesses may draw on their professional\n\nexperiences to guide their opinions without necessarily being treated as expert\n\nwitnesses.” United States v. Jeri, 869 F.3d 1247, 1265 (11th Cir. 2017) (citation,\n\ninternal quotation marks, alterations omitted) (holding police officer did not testify\n\nas expert even though his testimony “showed [his] familiarity with narcotics\n\ninvestigations and his experience interviewing drug couriers”), cert. denied, 138\n\nS. Ct. 529 (2017).\n\n\n6\n Rule 704 provides:\n\n (a) In General – Not Automatically Objectionable. An opinion is not\n objectionable just because it embraces an ultimate issue.\n\n (b) Exception. In a criminal case, an expert witness must not state an opinion about\n whether the defendant did or did not have a mental state or condition that constitutes\n an element of the crime charged or of a defense. Those matters are for the trier of\n fact alone.\n\n\n 23\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 24 of 42\n\n\n Moreover, even if Detective Greene did give expert testimony, Rule704(b)\n\nonly precludes an expert from “expressly stat[ing] a conclusion that the defendant\n\ndid or did not have the requisite intent” and from stating “an opinion as to the\n\ndefendant’s state of mind at the time of the offense.” Jeri, 869 F.3d at 1266\n\n(internal quotation marks omitted). But Rule 704(b) does not preclude even\n\n“expert testimony that supports an obvious inference with respect to the\n\ndefendant’s state of mind if that testimony does not actually state an opinion on\n\nthis ultimate issue, and instead leaves this inference for the jury to draw.”\n\nAugustin, 661 F.3d at 1123 (internal quotation marks, alteration omitted).\n\nDetective Greene’s challenged testimony may be ambiguous, but it clearly did not\n\nexpressly address Caniff’s mental state. Detective Greene’s testimony did not at\n\nall address whether Caniff believed Mandy was thirteen. Detective Greene, on\n\nrebuttal, testified only that he found “evidence of illegal activity” on the phone.\n\nIndeed, he did not even say what that evidence was or whether it related at all to\n\nCaniff’s state of mind. “Evidence of illegality” could as easily have referred to\n\nother elements of illegality other than the mens rea element.\n\n But even if we could say that the district court abused its discretion in\n\npermitting Detective Greene’s challenged testimony, any error was harmless\n\nbecause there is no “reasonable likelihood that it affected [Caniff’s] substantial\n\nrights.” Augustin, 661 F.3d at 1123 (internal quotation marks, alterations omitted).\n\n\n 24\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 25 of 42\n\n\nIt was defense counsel, not the Government, who first asked the detective if there\n\nwas “illegal activity” on the phone. The Government, on redirect, was merely\n\nattempting to clarify any confusion the detective’s responses on cross-examination\n\nmay have created, and to explain why he gathered the text messages as evidence.\n\nWe cannot conclude the district court abused its discretion in admitting this\n\ntestimony but even if the district court did so, any error was harmless.\n\n III. CONCLUSION\n\n For the foregoing reasons, we reject Caniff’s challenges to his three\n\nconvictions and AFFIRM.\n\n\n\n\n 25\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 26 of 42", "author": "EBEL, Circuit Judge:"}, {"type": "concurrence", "author": "NEWSOM", "text": "NEWSOM, J., concurring in part and dissenting in part:\n\n If forced to choose a favorite movie, I’d have to go with A Man for All\n\nSeasons, which chronicles Sir Thomas More’s heroic, principled-to-the-death stand\n\nagainst King Henry VIII’s effort to procure a divorce from Catherine of Aragon—\n\nand in the process anoint himself the head of his own newly-formed church.\n\n(Christopher Nolan’s Inception runs a close second, for sheer mind-blowing\n\nawesomeness, but I digress . . . .) My favorite scene from my favorite movie: a\n\ntesty dialogue between More and his son-in-law-to-be, the ever-zealous Richard\n\nRoper. Roper, anxious that the opportunistic hanger-on Richard Rich intends to\n\ndouble-cross More, who was then serving as the Lord Chancellor of England,\n\npleads (along with More’s wife and daughter) to have Rich arrested on the ground\n\nthat he’s “bad”—to which More responds, impassively, “There’s no law against\n\nthat.” To the objection that while they go on “talk[ing],” Rich has “gone,” More\n\nrejoins, more emphatically: “And go he should even if he were the Devil himself\n\nuntil he broke the law.” Then, this gem—\n\n Roper: So, now you’d give the Devil benefit of law!\n\n More: Yes. What would you do? Cut a great road through the law\n to get after the Devil?\n\n Roper: Yes, I’d cut down every law in England to do that!\n\n More: Oh? And when the last law was down, and the Devil turned\n round on you—where would you hide, Roper, the laws all being flat?\n This country is planted thick with laws from coast to coast—man’s\n 26\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 27 of 42\n\n\n laws, not God’s—and if you cut them down—and you’re just the man\n to do it—do you really think you could stand upright in the winds that\n would blow then? Yes, I’d give the Devil benefit of law, for my own\n safety’s sake. 1\n\n * \n\n I knew this day would come—eventually, I’d have to hold my nose and cast\n\n(and then explain) a vote that I found utterly nauseating. Well, here we are. I\n\ncouldn’t agree more with the majority—and the staffer-drafters of H.R. Rep. No.\n\n99-910, whoever they were—that “[o]f all the crimes known to our society,\n\nperhaps none is more revolting than the sexual exploitation of children, particularly\n\nfor the purposes of child pornography.” Maj. Op. at 16. And happily for me,\n\nCongress has given prosecutors plenty of ammunition to try, convict, and sentence\n\nthe purveyors and consumers of child porn. But, I respectfully submit, the\n\nmajority’s construction of 18 U.S.C. § 2251(d)(1)—to hold that when Caniff sent a\n\nprivate, person-to-person text message requesting explicit photos he “ma[de]” a\n\n“notice” for them—stretches that particular provision beyond the breaking point.\n\n To be clear, I’m not suggesting that Caniff is the “Devil himself” (although\n\nthe crimes of which he has been convicted are most assuredly devilish). Nor am I\n\nany way intimating that the majority’s construction of § 2251(d)(1) is tantamount\n\n\n\n1\n A Man for All Seasons (Columbia Pictures 1966). For this clip in particular, see A Man for All\nSeasons–The Devil and The Law, YouTube (Sept. 30, 2011),\nhttps://www.youtube.com/watch?v=d9rjGTOA2NA.\n\n 27\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 28 of 42\n\n\nto “cut[ting] down every law in [America]”—the majority’s interpretation is\n\nplausible, even if (I think) incorrect. And I am most certainly not casting myself in\n\nthe role of the inimitable More. I’m simply saying that as badly as I’d like to get\n\nCaniff—to see him rung up on every count of the indictment—my job is to take the\n\nlaw as I find it, and however regrettable it may be to me, I cannot conclude that\n\n§ 2251(d)(1) reaches Caniff’s conduct here.\n\n I\n In relevant part, 18 U.S.C. § 2251(d) prescribes stiff prison sentences—15\n\nyears to life—for any person who\n\n knowingly makes, prints, or publishes, or causes to be made, printed,\n or published, any notice or advertisement seeking or offering . . . to\n receive . . . any visual depiction, if the production of such visual\n depiction involves the use of a minor engaging in sexually explicit\n conduct and such visual depiction is of such conduct.\n\nId. § 2251(d)(1)(A) (emphasis added).\n\n The majority doesn’t contend that when Caniff sent a private text message to\n\n“Mandy” requesting photos, he “print[ed]” or “publishe[d]” anything—either a\n\n“notice” or an “advertisement.” Nor does the majority contend that Caniff\n\n“ma[de]” an “advertisement” for pornographic images. Rather, the majority holds\n\nthat by sending his text message Caniff “ma[de]” a “notice” for porn. Maj. Op. at\n\n\n\n\n 28\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 29 of 42\n\n\n6–7. That seems wrong to me for two reasons. 2\n\n A\n\n First, and most obviously, that’s just not how people talk. One would be\n\nhard-pressed to find any ordinary English speaker who would think that he\n\n“makes” a “notice” by conveying a request via text message. If I send a text to my\n\nson asking him to pick up some milk on the way home from school, have I\n\n“ma[de]” a “notice” for milk? And in turn, when he receives my message, would\n\nhe plausibly turn to his friends and say, “I’ve got to run by the store—my dad has\n\nmade a notice that we need milk”? I don’t think so. Caniff’s request wasn’t nearly\n\nso innocuous, of course, but he no more “ma[de]” a “notice” than I did. The\n\nmajority’s expansive construction seems to me to privilege how statutory terms\n\nmight conceivably be used as opposed to—as I think preferable—how they are\n\nused “in their ordinary and usual sense.” Caminetti v. United States, 242 U.S. 470,\n\n485–86 (1917).\n\n\n2\n Before jumping into the merits, I should briefly clear away a bit of procedural underbrush. As\nthe majority notes, Caniff didn’t request a jury instruction specifically defining “notice,” Maj.\nOp. at 7–8, and he hasn’t argued on appeal “that the district court made any legal error in\nsubmitting this term to the jury for its determination.” Id. at 16. To be clear, I don’t take issue\nwith the jury instructions here—which, as is commonplace, just tracked the language of\n§ 2251(d)(1). See United States v. Pabon-Cruz, 391 F.3d 86, 96 (2d Cir. 2004) (declining, in a\n§ 2251(d)(1) case, to hold that the district court plainly erred by “strict[ly] adher[ing] to the text\nof the statute in framing [its] jury instruction”). That said, we must still determine whether\nCaniff’s conviction can be squared with the statute’s language. See, e.g., Smith v. United States,\n508 U.S. 223 (1993) (considering, even in the absence of a clarifying jury instruction, whether\nthe defendant was properly convicted under 18 U.S.C. § 924(c)(1), which criminalizes the “use\nof a firearm during and in relation to . . . [a] drug trafficking crime”).\n\n 29\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 30 of 42\n\n\n B\n\n Second—and this will require a bit more unpacking—there is the matter of\n\nstatutory context. The majority focuses intently on the word “notice,” and it insists\n\nthat there are instances in everyday parlance in which that term is used to refer to a\n\nmessage “given from one individual or entity to another”—such as, for example,\n\nwhen a utility company issues a “notice” to a customer that her power is about to\n\nbe cut or an employee gives his boss “notice” that he won’t be at work. Maj. Op.\n\nat 6–11. Thus, the majority concludes, a “notice” needn’t necessarily be “sent to\n\nthe general public or at least a group of people.” Maj. Op. at 9. Fair enough—a\n\n“notice” can be sent from one individual to another; some uses of the word entail\n\npublic dissemination, others don’t. 3 The question for us, though, isn’t whether in\n\nthe abstract the word “notice” might possibly be understood to encompass person-\n\nto-person communications. Rather, and more specifically, the question is whether\n\nthe word “notice” as used in § 2251(d)(1)—and as informed by the statutory\n\ncontext—would ordinarily be understood by the average speaker of American\n\nEnglish to cover a private text message sent from one individual to another. See,\n\ne.g., Tyler v. Cain, 533 U.S. 656, 662 (2001) (emphasizing that courts should not\n\n\n\n3\n Compare, e.g., Black’s Law Dictionary 1227 (10th ed. 2014) (a “[l]egal notification required\nby law or agreement,” such as a tenant giving a landlord “written notice” before vacating an\napartment), with, e.g., Webster’s Third New International Dictionary 1544 (2002) (“a written or\nprinted announcement or bulletin”—as in “inserted a notice in the newspaper”).\n\n 30\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 31 of 42\n\n\n“construe the meaning of statutory terms in a vacuum”); Deal v. United States, 508\n\nU.S. 129, 132 (1993) (observing that the meaning of a statutory term should not be\n\n“determined in isolation,” but instead “must be drawn from the context in which it\n\nis used”).\n\n Here, therefore, the fact that the term “notice” can be understood to describe\n\none-to-one communications does not mean that it is best understood that way in\n\n§ 2251(d)(1). Context is critical—here, as elsewhere, it “disambiguates.” Antonin\n\nScalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 70\n\n(Thompson/West 2012). Accordingly, we must consider the term “notice” not in\n\nsplendid isolation, but rather—on the principle that a “word is given more precise\n\ncontent by the neighboring words with which it is associated,” United States v.\n\nWilliams, 553 U.S. 285, 294 (2008)—as part of an integrated statutory provision\n\nthat prescribes a stiff punishment for anyone who “makes, prints, or publishes . . .\n\nany notice or advertisement.” 18 U.S.C. § 2251(d)(1)(A). As explained below,\n\nonce we interpret “notice” by reference to its “neighbor[s],” it becomes clear—to\n\nme, anyway—that § 2251(d)(1) does not extend to private, person-to-person text\n\nmessages.\n\n 1\n\n Let’s start with the verbs. Under § 2251(d)(1), it’s not enough that a\n\n“notice” exist—it must have been “ma[de], print[ed], or publishe[d].” As already\n\n\n 31\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 32 of 42\n\n\nnoted, the majority doesn’t suggest that, when one sends a text message he “prints”\n\nor “publishes” anything. Rather, the majority focuses on the term “make[],” which\n\nit presumably concludes needn’t necessarily entail any public dissemination. Maj.\n\nOp. at 6–7. And standing alone (again, as with “notice,” in the abstract), the word\n\n“make[]” can be understood that way—as in, to “make” an offer or request. See\n\nOxford Dictionary of English 1069 (3d ed. 2010) (defining “make” to include to\n\n“communicate or express (an idea, request, or requirement),” as in “make him an\n\noffer he can’t refuse”). In concluding that Caniff “made ‘notices’ that he desired to\n\nreceive child pornography,” Maj. Op. at 18, the majority essentially reads “make[]”\n\na “notice” to mean “make[] a request.”\n\n But the context in which “make[]” is used in § 2251(d)(1) undercuts the\n\nmajority’s interpretation, because the word “make[]” has to be understood in the\n\nlight of its statutory companions, “print[]” and “publish[].” Let’s start with\n\n“publish.” That the term contemplates a public communication is evident from its\n\nLatin root—“publicare.” Webster’s Second New International Dictionary 2005\n\n(1944). True to those roots, Webster’s Second defines “publish” to mean “[t]o\n\nmake public announcement of” or “to make known to people in general”—or,\n\nalternatively, “[t]o bring before the public, as for sale or distribution.” Id.\n\nWebster’s Third similarly defines the term to mean “to declare publicly” or to\n\n“make generally known”—or, alternatively, “to call to the attention of the public:\n\n\n 32\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 33 of 42\n\n\nadvertise,” “to place before the public (as through a mass medium),” or to\n\n“disseminate.” Webster’s Third New International Dictionary 1387 (2002). See\n\nalso Oxford English Dictionary (3d ed. 2011), http://www.oed.com (Feb. 12, 2019)\n\n(“[t]o make public or generally known; to declare or report openly or publicly; to\n\nannounce; (also) to propagate or disseminate”—or, alternatively, “to prepare and\n\nissue copies of (a book, newspaper, piece of music, etc.) for distribution or sale to\n\nthe public”).\n\n “Print” is similar. The most pertinent definition in Webster’s Second defines\n\n“print” to mean “[t]o publish a book, article, music, or the like,” Webster’s Second\n\nat 1967, and the successor in Webster’s Third treats the term as a subset of\n\npublishing generally, defining it to include “to publish in print”—as in “all the\n\nnews that’s fit to print,” Webster’s Third at 1803. The OED likewise (as relevant\n\nhere) defines “print” as meaning “[t]o cause (a manuscript, book, etc.) to be\n\nprinted,” “to give to the press,” or “to publish.” Oxford English.\n\n What, then, of “make[]”? The definitions of “print” and “publish” indicate,\n\nto my mind, that the word “make[],” as used in § 2251(d)(1), is not meant in the\n\nmake-a-request sense. When one says that something has been “print[ed]” or\n\n“publishe[d],” it’s quite unlikely that she has in mind an audience of one.\n\nRather, both “print[]” and “publish[]” overwhelmingly involve the announcement\n\nof a message to the public. At least as it pertains to “notice or advertisement”—\n\n\n 33\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 34 of 42\n\n\nmore on that phrase in a moment—“make[]” fits comfortably within that ambit.\n\nThe public-ness of the terms “print[]” and “publish[]” indicates that when one\n\n“makes” a “notice or advertisement,” he is likewise doing so for broad\n\ndissemination—or at least dissemination beyond a single individual. One could\n\n“make[]” a “notice or advertisement” in a TV commercial or on a blog. But at\n\nleast in the context of § 2251(d)(1), one does not “make[]” a “notice” in a private,\n\nperson-to-person text message.\n\n 2\n\n But there’s more—a second bit of context that informs the analysis here.\n\n“[N]otice” is part of linguistic package—“notice or advertisement.” What can we\n\nlearn about the meaning of “notice”—again, as used in § 2251(d)(1)—from its\n\nstatutory running buddy, “advertisement”? 4 Standard English-language\n\ndictionaries confirm what we all know to be true—that, at least as used in modern\n\nparlance, an “advertisement” typically entails a public statement. Webster’s\n\n\n4\n With respect to the phrase “notice or advertisement,” the majority objects that the noscitur a\nsociis canon—the principle that a word is known by the company it keeps—“is not particularly\nhelpful here to define one of two statutory terms.” Maj. Op. at 14 n.4. The canons, though,\naren’t hard and fast rules, so we shouldn’t set an artificial floor on the number of words required\nfor an apt comparison. See MBIA Ins. Corp. v. F.D.I.C., 708 F.3d 234, 241, 245 (D.C. Cir. 2013)\n(declining to accept a party’s argument that “a list of two words is an inappropriate occasion for\napplication of noscitur a sociis”); Scalia & Garner, supra, at 197 (stating that “[a]lthough most\nassociated-words cases involve listings . . . a listing is not [a] prerequisite” because an\n“association is all that is required”). Graham County Soil & Water Conservation District v.\nUnited States, which the majority cites, does not suggest otherwise; unlike the closely related\nterms “notice” and “advertisement,” the Court explained there that the “list of three terms [at\nissue were] quite distinct from the other[s] no matter how construed.” 559 U.S. 280, 288 (2010).\n\n 34\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 35 of 42\n\n\nSecond, for instance, defines “advertisement” (in the only entry not marked either\n\n“obs[olete]” or “arch[aic]”) to mean “[a] public notice, esp. in some public print, as\n\na newspaper, periodical, book, poster, or handbill . . . .” Webster’s Second at 39\n\n(1944). Webster’s Third echoes that definition, adding only that an advertisement\n\nis typically “paid” and may also be disseminated “over radio or television.”\n\nWebster’s Third at 31 (2002). The OED likewise defines “advertisement” (in its\n\nnon-obsolete, non-archaic sense) to mean “a public notice or announcement, now\n\nesp. one advertising goods or services”—originally “on a placard, poster, etc., or in\n\na journal or newspaper,” and more recently “on a broadcast medium [such] as\n\nradio, television, etc.” Oxford English. In Black’s, more of the same: “a\n\ncommercial solicitation”—“an item of published or transmitted matter made with\n\nthe intention of attracting clients or customers.” Black’s Law Dictionary at 65\n\n(10th ed. 2009).\n\n On balance, I think that the placement of the term “notice” alongside the\n\nterm “advertisement” indicates that, at least as used in § 2251(d)(1), the former,\n\nlike the latter, ordinarily contemplates a public communication. The dictionaries\n\nare chock full of definitions of “notice” that closely resemble those of\n\n“advertisement.” One usage of “notice,” for instance, according to Webster’s\n\nSecond, is “[a] written or printed sign . . . communicating information or\n\nwarning”—as in “to put a notice on a door.” Webster’s Second at 1669. So too in\n\n\n 35\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 36 of 42\n\n\nWebster’s Third: “a written or printed announcement or bulletin—like “insert[ing]\n\na notice in the newspaper.” Webster’s Third at 1544. And the OED: “a displayed\n\nsign or placard giving news or information” (such as, for example, “notices on the\n\nbulletin board at your grocery store, describing your product and giving a price”)\n\nor “[a] short announcement or advertisement in a newspaper, magazine, etc.”\n\nOxford English. And Black’s, as well: “[a] written or printed announcement”—as\n\nin “the notice of sale was posted on the courthouse bulletin boards.” Black’s Law\n\nDictionary at 1227. Cf. also Gustafson v. Alloyd Co., 513 U.S. 561, 575–76 (1995)\n\n(interpreting the phrase “any communication” to refer only to public\n\ncommunications, in part because the adjacent inclusion of the terms “notice,\n\ncircular, [and] advertisement” made it “apparent that the list refer[red] to\n\ndocuments of wide dissemination” (emphasis added)).5\n\n A common theme unites these definitions of the statutorily connected terms\n\n“notice” and “advertisement”: a communication that is usually commercial in\n\nnature and usually conveyed via public medium—sign, poster, placard, bulletin\n\n\n5\n I’m mindful, of course, “that identical language may convey varying content when used in\ndifferent statutes.” Yates v. United States, 135 S. Ct. 1074, 1082 (2015). But for what it’s worth,\nother statutes—like the one at issue in Gustafson—use language like that found in § 2251(d)(1)\nin contexts that one would (I think) tend to associate with wide dissemination. Title VII, for\ninstance, makes it unlawful—in the context of job postings—“to print or publish . . . any notice\nor advertisement relating to employment” that includes discriminatory preferences. 42 U.S.C.\n§ 2000e-3 (emphasis added). The Fair Housing Act does the same for those who publicize the\navailability of housing, making it unlawful to “make, print, or publish, or cause to be made,\nprinted, or published any notice, statement, or advertisement” indicative of such preferences\n“with respect to the sale or rental of a dwelling.” 42 U.S.C. § 3604(c) (emphasis added).\n\n 36\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 37 of 42\n\n\nboard, newspaper, radio, television, etc. Where do text messages fit? I don’t think\n\nthey do. To the chagrin of many—and perhaps especially many parents of\n\nteenagers [said the parent of teenagers]—text messages have largely replaced face-\n\nto-face communications and telephone conversations. They are not, though, the\n\nmodern-day analogues of the public-facing media so pervasively referenced in the\n\ndefinitions of “notice” and “advertisement.” (It is worth noting in this\n\nconnection—even if only briefly—that under the majority’s broad interpretation, a\n\nperson also “make[s]” a “notice” within the meaning of § 2251(d)(1) when she\n\nplaces a telephone call. That seems strange to me, but it follows inexorably from\n\nthe majority’s logic.)\n\n To be clear, saying that, as used in § 2251(d)(1), a “notice” entails some\n\npublic dissemination does not require that it be blasted to the public at large.\n\nOther circuits have held, for instance—I think correctly—that § 2251(d)(1) makes\n\nit a crime to post offers to buy and sell child pornography in computer “chat\n\nrooms.” See, e.g., United States v. Grovo, 826 F.3d 1207, 1211 (9th Cir. 2016)\n\n(message visible to 40–45 people); United States v. Franklin, 785 F.3d 1365, 1367\n\n(10th Cir. 2015) (message visible to 108 people). Posts in chat rooms or to online\n\nmessage boards are just the contemporary (and nefarious) successors to the signs,\n\nposters, and placards to which pre-internet dictionaries refer. That an online\n\nmessage board might be password-protected doesn’t make the “notice[s] or\n\n\n 37\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 38 of 42\n\n\nadvertisement[s]” posted there any less public—it’s the equivalent of a bulletin\n\nboard in a college dorm that requires keycard access to enter.\n\n In any event, I conclude that, on balance, the juxtaposition of the words\n\n“notice” and “advertisement”—particularly following, as they do, the verbs\n\n“make[],” “print[],” and “publish[]”—favors an understanding of “notice” that\n\nentails dissemination to more than a single individual. 6\n\n * \n\n The unfortunate bottom line for me is this: No ordinary speaker of American\n\nEnglish would describe a private, person-to-person text message—whether\n\n\n\n6\n There are two loose ends concerning the phrase “notice or advertisement.” First, the majority\ntakes great pains to emphasize that the phrase is preceded by the word “any.” Maj. Op. at 11–12.\nIt’s true, of course, that “any” is a capacious term—we’ve said so repeatedly. But it’s equally\ntrue that the net cast by the term “any” is necessarily limited by a proper understanding of the\nnouns that it modifies. Introduction of that one word provides no basis for grafting onto the\nphrase “notice or advertisement” a construction that neither ordinary meaning nor statutory\ncontext sensibly supports. Moreover, if the word “any” bore the weight that the majority assigns\nto it—such that it ropes in every communication, public and private alike—one is left to wonder\nwhy Congress would have drafted so elliptically. Why not just use the more economical “any\ncommunication”?\n Second, and separately, given the usual rule that we are “obliged to give effect, if\npossible, to every word Congress used,” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979),\nwhat distinguishes a “notice” from an “advertisement?” Well, plenty of things: an advertisement\ntypically embodies a commercial message in a way that a notice need not; an advertisement is\nusually designed to induce its recipient to respond in a way that a notice isn’t necessarily. In any\nevent, even if, as to public-ness, there isn’t much daylight between the two terms as I understand\nthem, I wouldn’t give § 2251(d)(1) a meaning that the text doesn’t comfortably support based on\na desire, however well-intentioned, to avoid surplusage. “Doublets and triplets abound in\nlegalese,” especially given that Congress more than occasionally brings a “belt-and-suspenders”\nmentality to drafting statutes. See Scalia & Garner, supra, at 176–77 (cautioning that the\nsurplusage canon must be applied “with careful regard to context” and that “a court may well\nprefer ordinary meaning to an unusual meaning that will avoid surplusage”).\n\n 38\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 39 of 42\n\n\nrequesting milk from the grocery or, far more disgustingly, pornographic images\n\nfrom a teenager—as the “mak[ing]” of a “notice.” And the context in which those\n\nterms are used in § 2251(d)(1)—surrounded as they are by words like “print[],”\n\n“publish[],” and “advertisement”—confirms that the proscription on “mak[ing]” a\n\n“notice” doesn’t reach Caniff’s conduct. 7\n\n II\n\n At bottom, the majority’s interpretation of § 2251(d)(1) isn’t textual—it’s\n\npurposive. See, e.g., Maj. Op. at 16 (relying on out-of-circuit district court\n\nopinions asserting Congress’s “clear statutory purpose” and “primary intent”)\n\n(quoting United States v. Peterson, No. CR 12-228-GW, 2015 WL 13657215, at 5\n\n(C.D. Cal. Mar. 20, 2015) (unreported), and United States v. Christie, 570 F. Supp.\n\n2d 657, 665 (D. N.J. 2008)). To be clear, I’m fully on board with the objective of\n\n“eradicat[ing] the child-pornography market,” id.—and again, Congress seems to\n\n\n\n7\n Although by no means necessary to my conclusion, I’m tempted to pile on by invoking the rule\nof lenity—which states, in essence, that if at the end of the interpretive road, having applied the\napplicable semantic and contextual canons of interpretation, there exists any meaningful doubt\nabout the application of a criminal statute to a defendant’s conduct, then the doubt should be\nresolved in the defendant’s favor. See Scalia & Garner, supra, at 296–302. Caniff, though,\nhasn’t invoked the rule in support of his contention that § 2251(d)(1) doesn’t reach his conduct,\nand this Court seems to have held—oddly to my mind—that a criminal defendant can waive a\nlenity-based argument by failing to affirmatively assert it. See United States v. Thompson, 702\nF.3d 604, 608 n.1 (11th Cir. 2012). I tend to think of the rule of lenity, like any other interpretive\ncanon, not as a litigating position of the sort that might be waived or abandoned, but rather as an\nin-the-nature-of-things clue to the meaning of a statutory enactment—a clue that a court could,\nand even should, invoke on its own if necessary to a proper interpretation. But that’s an issue for\nanother day.\n\n 39\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 40 of 42\n\n\nhave done a good job of enacting a cluster of statutes that substantially advance\n\nthat objective. But even in the service of such a noble purpose, we can’t make one\n\nof the statutes within that cluster—§ 2251(d)(1)—say what it doesn’t say. Section\n\n2251(d)(1)’s ordinary meaning should inform what we take to be Congress’s\n\npurpose, not the other way around. See United States v. Wiltberger, 18 U.S. 76, 96\n\n(1820) (Marshall, C.J.) (stating that “[t]he intention of the legislature is to be\n\ncollected from the words they employ” and elaborating that “[t]o determine that a\n\ncase is within the intention of a statute, its language must authorise us to say so”).\n\n The majority is chiefly concerned that interpreting § 2251(d)(1) in\n\naccordance with (what I think to be) its ordinary meaning would create a\n\n“loophole” in the child-pornography laws that “would leave the most vulnerable of\n\nthe victims of pedophilia unprotected against the most effective and hardest to\n\ndetect predatory conduct.” Maj. Op. at 17. Fortunately, that’s not true.\n\nRegardless of what we say today about § 2251(d)(1)’s reach, Title 18 includes an\n\nentire chapter dedicated to punishing the “Sexual Exploitation and Other Abuses of\n\nChildren.” The provisions included in that chapter pretty well cover the\n\nwaterfront, and they give the government ample ammunition to get at the peddlers\n\nand consumers of child porn—including those, like Caniff, who solicit their smut\n\nthrough private text messages.\n\n Perhaps most clearly, 18 U.S.C. § 2251(a) prescribes a 15-years-to-life\n\n\n 40\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 41 of 42\n\n\nsentence for anyone “who employs, uses, persuades, induces, entices, or coerces\n\nany minor to engage in . . . any sexually explicit conduct for the purpose of\n\nproducing any visual depiction of such conduct.” That prohibition extends not\n\nonly to those who solicit minors for sex, but also to those, like Caniff, who ask for\n\nnude photos—the surest proof being that Caniff was charged and convicted under\n\n§ 2251(a), and we have affirmed that conviction today. See also, e.g., United\n\nStates v. Mathis, 767 F.3d 1264, 1279 (11th Cir. 2014) (rejecting a sufficiency-of-\n\nthe-evidence challenge to a § 2251(a) conviction of a defendant who sent a text\n\nmessage to a minor “offer[ing] to pay [the minor] for a picture of [her] genitalia”\n\nand “direct[ing the minor] to take sexually explicit pictures”).\n\n Then there’s 18 U.S.C. § 2252(a)(2), which makes it a crime—punishable by\n\nfive to 40 years in prison—to “knowingly receive[] . . . any visual depiction” of a\n\nminor engaging in “sexually explicit conduct” by “using any means or facility of\n\ninterstate or foreign . . . mails.” So too § 2252A, which makes it a crime—also\n\npunishable by five to 40 years—to knowingly receive “any child pornography that\n\nhas been mailed . . . using any means or facility of interstate or foreign commerce\n\n. . . by any means, including by computer.” Notably, wholly apart from the act of\n\nsoliciting nude photos, § 2252(a)(2) and § 2252A allow the government to\n\nseparately charge an individual if he receives pictures via “any means or facility of\n\ninterstate or foreign commerce.” Thus, it seems to me, there is essentially zero risk\n\n\n 41\n\f Case: 17-12410 Date Filed: 02/15/2019 Page: 42 of 42\n\n\nthat an ordinary-meaning interpretation of § 2251(d)(1) would (as the government\n\nwarns) allow individuals like Caniff to “circumvent federal law merely because\n\nchild pornography is noticed or advertised to an individual via text message.” Br.\n\nof Appellee at 39.\n\n In short, Caniff’s conduct is covered; Congress’s intent has been well\n\nserved. We needn’t, and shouldn’t—either in the name of statutory “purpose” or\n\notherwise—graft onto § 2251(d)(1) a strained, acontextual interpretation.\n\n III\n\n There’s a big piece of me that thinks that because Caniff (even more so than\n\nMaster Rich) is “bad,” he should have the book—for that matter, the whole\n\nlibrary—thrown at him. The law, though, is a pesky thing. Caniff, while guilty of\n\nmany crimes—some charged, some not—is not guilty of “mak[ing], print[ing], or\n\npublish[ing]” an “advertisement or notice” for child pornography within the\n\nmeaning of 18 U.S.C. § 2251(d)(1). Accordingly, while I join Parts I, II.B., and\n\nII.C of the majority opinion, I must respectfully dissent from Part II.A.\n\n\n\n\n 42"}]}	MARCUS	NEWSOM	EBEL	1	{}	4	0	2	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4591310/	Published	1	1	0	1	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,311		Democratic Executive Committee of Florida v. Laurel M. Lee	2019-02-15	18-14758	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before TJOFLAT, MARTIN, and ROSENBAUM, Circuit Judges.", "parties": "", "opinions": [{"author": "ROSENBAUM, Circuit Judge:", "type": "010combined", "text": "Case: 18-14758 Date Filed: 02/15/2019 Page: 1 of 83\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-14758\n ________________________\n\n D.C. Docket No. 4:18-cv-00520-MW-MJF\n\n\nDEMOCRATIC EXECUTIVE COMMITTEE OF FLORIDA,\nBILL NELSON FOR US SENATE,\n\n Plaintiffs-Appellees,\n\nversus\n\nLAUREL M. LEE, 1 in her official capacity as Florida Secretary of State,\nATTORNEY GENERAL OF THE STATE OF FLORIDA,\n\n Defendants-Appellants,\n\nNATIONAL REPUBLICAN SENATORIAL COMMITTEE,\n\n Intervenor Defendant-Appellant.\n\n\n ________________________\n\n Appeals from the United States District Court\n for the Northern District of Florida\n ________________________\n\n (February 15, 2019)\n 1\n As Florida’s current Secretary of State, Laurel M. Lee has been automatically substituted\nfor Florida’s prior Secretary of State as a party. See Fed. R. App. P. 43(c)(2).\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 2 of 83\n\n\nBefore TJOFLAT, MARTIN, and ROSENBAUM, Circuit Judges.\n\nROSENBAUM, Circuit Judge:\n\n Voting is the beating heart of democracy. It is a\n “fundamental political right, because [it is] preservative of\n all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).\n “It is beyond cavil that ‘voting is of the most fundamental\n significance under our constitutional structure.’” Burdick\n v. Takushi, 504 U.S. 428, 433 (1992) (quoting Ill. Bd. of\n Elections v. Socialist Workers Party, 440 U.S. 173, 184\n (1979)).\n\nLeague of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1215 (N.D.\n\nFla. 2018). We can’t say it any better than that. But, of course, voting alone is not\n\nenough to keep democracy’s heart beating. Legitimately cast votes must then be\n\ncounted.\n\n This case requires us to consider Florida’s practice of counting vote-by-mail\n\nballots only after verifying that the voter’s signature provided with the ballot\n\nmatches the voter’s signature in the state’s records. Although this practice is\n\ndesigned to prevent fraud, signature mismatches occur for a variety of reasons—\n\nincluding purely innocent ones. And Florida’s lack of any standards or formal\n\ntraining requirements for those who assess the signatures as mismatched can also\n\ncontribute to false positives for signature mismatches. So the fact that a Florida\n\nelection official may decide a voter’s signature provided with her ballot does not\n\nmatch her signature in the state’s records does not necessarily mean her vote is\n\nfraudulent and should not be counted.\n 2\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 3 of 83\n\n\n But Florida’s election code allows for just that. Because of the way Florida\n\nhas scheduled its election process, some voters who submit a vote-by-mail ballot by\n\nthe stated deadline are not notified about a signature mismatch until after it is too\n\nlate to demonstrate their eligibility to vote. As a result, their votes do not count, and\n\nthey are disenfranchised.\n\n Upon Plaintiffs-Appellees the Democratic Executive Committee of Florida\n\n(“DECF”) and Bill Nelson for U.S. Senate’s (the “Nelson Campaign”) motion, the\n\ndistrict court here entered an order providing these voters with a 48-hour period to\n\ncure their signature mismatch, so their votes could be counted. Defendants-\n\nAppellants the National Republican Senatorial Committee (“NRSC”), the Florida\n\nSecretary of State2 (“Secretary”), and the Florida Attorney General (“Attorney\n\nGeneral”) appealed the district court’s order, and the NRSC sought an emergency\n\nstay of the order.\n\n\n\n\n 2\n As we have noted, Laurel M. Lee was substituted as a defendant in this case when she\nrecently became Florida’s Secretary of State. Florida’s prior secretary of state was a man. For\nease of reference and clarity and since Florida’s current Secretary of State is a woman, we use the\nfeminine gender throughout this opinion to refer to Florida’s Secretary of State, regardless of\nwhether a man or a woman held the position at the time of any specific event discussed in this\nopinion.\n\n 3\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 4 of 83\n\n\n In this opinion, we address only the NRSC’s motion for emergency stay.\n\nBecause the NRSC has not satisfied the requirements for the issuance of a stay in\n\nthis case, we deny its motion.3\n\nI. Background4\n\n Florida allows eligible voters to cast their votes by mailing in their ballots\n\nrather than voting in person on Election Day. See Fla. Stat. § 101.62 (2016). This\n\noption can be especially useful to those temporarily residing away from home, such\n\nas college students, and those with physical impairments that make it difficult to get\n\naround.\n\n To protect against fraud, Florida requires those who choose to vote by mail to\n\nsign the voter’s certificate on the back of the envelope on which they mail their\n\nballots. Fla. Stat. § 101.65 (2016). Voting officials later compare the signature on\n\nthe certificate with the signature on file for that voter. Fla. Stat. § 101.68 (2017). If\n\nthe reviewing official believes the signatures do not match, the ballot is rejected. Id.\n\n For a period, Florida did not afford voters whose ballots were rejected due to\n\nsignature mismatch the opportunity to cure their votes by proving their identities.\n\nSee Fla. Democratic Party v. Detzner, No. 4:16CV607-MW/CAS, 2016 WL\n\n\n\n\n 3\n Since the NRSC filed its appeal as an emergency motion for stay, we previously issued\nour order denying that motion over one dissent. We indicated in that order that written opinions\nexplaining the basis for our decision would follow. This opinion sets forth our reasoning.\n 4\n The facts provided come from the record evidence unless otherwise indicated.\n 4\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 5 of 83\n\n\n6090943, at 2 (N.D. Fla. Oct. 16, 2016). But the signature-match scheme calls on\n\nofficials who are not required to receive formal training to judge the similarities of\n\nsignatures, and everyday factors “such as body position, writing surface, and noise”\n\nall affect one’s signature. Id. at 2, 7. So the signature-match scheme can result in\n\nthe rejection of an eligible voter’s ballot, through no fault of the voter. Id. at 8.\n\n The shortcomings of the signature-match scheme made it nearly certain to\n\nincorrectly reject the ballots of some legitimate voters. As a result, a district court\n\nin Florida (the same one that ruled in the case now under review) held that the\n\nscheme would unconstitutionally disenfranchise legitimate voters and ordered the\n\nstate to provide a way for those voters who had their ballots rejected for signature\n\nmismatch to prove their identities and have their votes count. Id. at 9.\n\n In response to the district court’s decision, the Florida legislature amended the\n\nelection code to allow voters to cure improperly rejected ballots. After that\n\namendment, a voter, upon learning that her vote had been rejected for signature-\n\nmismatch, had until 5 p.m. one day before the election to verify her identity by\n\nsubmitting a cure affidavit and an accepted form of identification. Fla. Stat. §\n\n101.68(4). Working in tandem, the cure provision and the original signature-match\n\nrequirement were supposed to guard against both vote-by-mail fraud and arbitrary\n\ndisenfranchisement of legitimate voters.\n\n\n\n\n 5\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 6 of 83\n\n\n Florida also allows prospective voters who cannot prove their eligibility to\n\nvote to cast provisional ballots. Fla. Stat. § 101.048(1) (2008). Like vote-by-mail\n\nballots, provisional ones are also protected by the signature-match requirement: if\n\nthe signature on the provisional ballot voter’s certificate and affirmation does not\n\nmatch the signature on the voter’s registration, the ballot will not count. Id. §\n\n101.048(2)(b)1. But unlike for vote-by-mail ballots, Florida does not provide a way\n\nfor provisional voters whose ballots were rejected for signature mismatch to cure\n\ntheir ballots.5 Democratic Exec. Comm. of Fla. v. Detzner, 347 F. Supp. 3d 1017,\n\nNo. 4:18-CV-520-MW/MJF, 2018 WL 5986766, at 3 (N.D. Fla. 2018).\n\n Plaintiffs DECF and the Nelson Campaign challenged the constitutionality of\n\nthe signature-match scheme as it relates to vote-by-mail and provisional voters.\n\nThey asserted that the scheme continues to disenfranchise eligible voters on an\n\narbitrary basis, in violation of the First and Fourteenth Amendments. As relevant\n\nhere, Plaintiffs asked the district court for an emergency injunction requiring\n\n\n\n\n 5\n Before the district court, the Attorney General posited that Fla. Stat. § 101.048(1)\nempowers a provisional voter to cure her mismatched signature by 5 p.m. on the second day\nfollowing the election. However, § 101.048(1) merely allows a provisional voter to present written\nevidence supporting her eligibility to vote. That evidence is then considered by the county\ncanvassing board when determining whether the person is entitled to vote. Id. § 101.048(2)(a).\nOnly after determining that the person is entitled to vote does the canvassing board compare\nsignatures. Id. § 101.048(2)(b). The section provides no information about giving notice of\nsignature mismatch in time to implement a cure, let alone information on how to cure. On its face,\n§ 101.048(1) cannot fairly be said to provide provisional voters an opportunity to cure.\n 6\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 7 of 83\n\n\nofficials to stop rejecting ballots based on signature mismatch and to count every\n\nvote-by-mail and provisional vote that had been rejected for that reason.\n\n The district court agreed that the signature-match protection provided by\n\nFlorida’s amended election laws still blocked too many eligible voters. But rather\n\nthan granting plaintiffs’ request to count every vote-by-mail and provisional ballot\n\nthat had been rejected for signature mismatch, the district court issued a much\n\nnarrower preliminary injunction: under it, only the ballots of those voters who were\n\nbelatedly notified of signature mismatch could be counted, and they would be\n\ncounted only after those voters timely verified their identities by following the\n\nnormal cure procedures. See Democratic Exec. Comm., 2018 WL 5986766, at 9.\n\n Defendants the NRSC, the Secretary, and the Attorney General appealed. The\n\nNRSC also sought an emergency stay of the district court’s preliminary injunction.\n\nII. Legal Standard\n\n A stay of a preliminary injunction requires the exercise of our judicial\n\ndiscretion, and the party requesting the stay must demonstrate that the circumstances\n\njustify the exercise of that discretion. In considering a motion for stay, we account\n\nfor the following factors, which substantially overlap with the factors governing\n\npreliminary injunctions: (1) whether the stay applicant has made a strong showing\n\nthat it is likely to succeed on the merits, (2) whether the applicant will be irreparably\n\ninjured absent a stay, (3) whether issuance of the stay will substantially injure the\n\n\n 7\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 8 of 83\n\n\nother parties interested in the proceeding, and (4) where the public interest lies. Nken\n\nv. Holder, 556 U.S. 418, 434 (2009). 6 The first two factors are the most critical. Id.\n\nat 434-35. To satisfy its burden as to those factors, the party seeking the stay must\n\nshow more than the mere possibility of success on the merits or of irreparable injury.\n\nId.\n\n In considering whether to stay a preliminary injunction, we apply the usual\n\nstandards of review governing our review of the merits of the preliminary injunction.\n\nSee U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008). So we\n\nexamine the district court’s grant of the preliminary injunction for abuse of\n\ndiscretion, reviewing de novo any underlying legal conclusions and for clear error\n\nany findings of fact. See id.; Transcon. Gas Pipe Line Co., LLC v. 6.04 Acres, More\n\nor Less, Over Parcel(s) of Land of Approximately 1.21 Acres, More or Less, Situated\n\nin Land Lot 1049, 910 F.3d 1130, 1163 (11th Cir. 2018).\n\n After careful consideration, we deny the NRSC’s motion to stay the\n\npreliminary injunction.\n\nIII. The Nken factors militate against a stay of the preliminary injunction.\n\n\n\n\n 6\n The preliminary-injunction factors a district court considers include the following: (1) the\nlikelihood of success on the merits, (2) whether irreparable injury will occur in the absence of the\npreliminary injunction, (3) the balance of burdens on the parties, and (4) the public interest. See\nSiegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).\n 8\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 9 of 83\n\n\n Before jumping into our application of the Nken factors, we begin by noting\n\nthat Plaintiffs properly sued the Secretary in her official capacity when they asserted\n\nthat Florida’s signature-match regime imposed an undue burden on the right to vote.\n\n“A state official is subject to suit in his official capacity when his office imbues him\n\nwith the responsibility to enforce the law or laws at issue in the suit.” Grizzle v.\n\nKemp, 634 F.3d 1314, 1319 (11th Cir. 2011). Here, of course, the signature-\n\nmatching provisions of the election laws—including the provisions that enabled\n\nbelated notice of mismatch to voters—were at issue. Because the Secretary is the\n\nstate’s chief election officer with the authority to relieve the burden on Plaintiffs’\n\nright to vote, she was appropriately sued for prospective injunctive relief. Fla. Stat.\n\n§ 97.012 (2016); Fla. Democratic Party, 2016 WL 6090943, at 4-5; see also Ex\n\nparte Young, 209 U.S. 123 (1908); Grizzle, 634 F.3d at 1319.\n\n With that established, we now apply the Nken factors to determine whether\n\nthe NRSC is entitled to a stay of the district court’s preliminary injunction.\n\n A. The first Nken factor disfavors a stay because the NRSC has not made\n a strong showing that it is likely to succeed on appeal.\n\n We begin with whether the NRSC has demonstrated a strong likelihood of\n\nsuccess on the merits of appeal. Here, the NRSC has not made a strong showing\n\nthat it is likely to succeed on appeal, either on the merits of the constitutional claim\n\nor on its laches argument.\n\n\n\n 9\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 10 of 83\n\n\n i. The NRSC has not made a strong showing that the burden\n imposed on the right to vote is constitutional as judged by the\n Anderson-Burdick balancing test.\n Plaintiffs DECF and the Nelson Campaign challenged the constitutionality of\n\nthe signature-match scheme as it relates to vote-by-mail and provisional voters, on\n\nthe basis that the scheme violates the prohibition against undue burdens on the right\n\nto vote, as embodied in the First and Fourteenth Amendments.7 We evaluate the\n\nconstitutionality of a challenged election law by applying the Anderson-Burdick test.\n\nAnderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S.\n\n428, 434 (1992). That test requires us to weigh the character and magnitude of the\n\nasserted First and Fourteenth Amendment injury against the state’s proffered\n\njustifications for the burdens imposed by the rule, taking into consideration the\n\nextent to which those justifications require the burden to plaintiffs’ rights. See\n\nAnderson, 460 U.S. at 789; Burdick, 504 U.S. at 434.\n\n A law that severely burdens the right to vote must be narrowly drawn to serve\n\na compelling state interest. Burdick, 504 U.S. at 434. And even when a law imposes\n\nonly a slight burden on the right to vote, relevant and legitimate interests of sufficient\n\nweight still must justify that burden. Common Cause/Ga. v. Billups, 554 F.3d 1340,\n\n1352 (11th Cir. 2009). The more a challenged law burdens the right to vote, the\n\n\n 7\n In the district court, Plaintiffs also alleged that the scheme violates the Fourteenth\nAmendment’s Equal Protection Clause, but the district court did not enter relief on this theory, and\nPlaintiffs did not cross-appeal on that basis. Therefore, we do not explore this particular theory of\nPlaintiffs’.\n 10\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 11 of 83\n\n\nstricter the scrutiny to which we subject that law. Stein v. Ala. Sec. of State, 774\n\nF.3d 689, 694 (11th Cir. 2014).\n\n a. Burden Imposed by the Signature-match Scheme on the\n Right to Vote\n\n We begin our analysis by identifying the burden that Florida’s signature-\n\nmatch scheme imposes on the right to vote. Here, the burden falls on vote-by-mail\n\nand provisional voters’ fundamental right to vote. The Supreme Court has long\n\nrecognized that burdens on voters implicate fundamental First and Fourteenth\n\nAmendment rights. See Anderson, 460 U.S. at 787 n.7. Specifically, voters have a\n\nFirst Amendment right “to associate for the advancement of political beliefs”—a\n\nfreedom likewise protected by the Fourteenth Amendment “from infringement by\n\nthe states.” Williams v. Rhodes, 393 U.S. 23, 30-31 (1968); see also Swanson v.\n\nWorley, 490 F.3d 394, 902 (11th Cir. 2007). 8 They also enjoy a Fourteenth\n\nAmendment right “to participate equally in the electoral process.” See Swanson, 490\n\nF.3d at 902.\n\n To establish an undue burden on the right to vote under the Anderson-Burdick\n\ntest, Plaintiffs need not demonstrate discriminatory intent behind the signature-\n\nmatch scheme or the notice provisions because we are considering the\n\n\n 8\n Swanson discussed these rights in relation to a candidate, but “the rights of voters and the\nrights of candidates do not lend themselves to neat separation.” Bullock v. Carter, 405 U.S. 134,\n143 (1972).\n\n\n 11\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 12 of 83\n\n\nconstitutionality of a generalized burden on the fundamental right to vote, for which\n\nwe apply the Anderson-Burdick balancing test instead of a traditional equal-\n\nprotection inquiry. 9 See, e.g., Anderson, 460 U.S. at 806 (showing that, even without\n\nproof of discriminatory intent, a state’s early filing deadline was still an\n\nimpermissible burden since it was insufficiently justified by legitimate state\n\ninterests); Obama for America v. Husted, 697 F.3d 423, 429-30 (6th Cir. 2012)\n\n(rejecting calls to apply “a straightforward equal protection analysis” and explaining\n\nthat “when a state regulation is found to treat voters differently in a way that burdens\n\nthe fundamental right to vote, the Anderson-Burdick standard applies”).\n\n Here, Florida’s signature-match scheme subjects vote-by-mail and\n\nprovisional electors to the risk of disenfranchisement in two ways. First, problems\n\noccur because of the way in which Florida implements the scheme. And second,\n\ndeficiencies arise because of the very nature of matching signatures.\n\n With respect to Florida’s execution of the signature-match requirement,\n\nFlorida has not enacted uniform standards for matching signatures, nor has it created\n\n\n\n 9\n Under Anderson-Burdick, it is not necessary for a plaintiff to show discriminatory intent\nto make out a claim that the state has unconstitutionally burdened the right to vote. To be sure, a\ntraditional Equal Protection Clause claim is cognizable in the voting context if the plaintiff alleges\nthat discriminatory animus motivated the legislature to enact a voting law. Vill. of Arlington\nHeights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory\nintent or purpose is required to show a violation of the Equal Protection Clause.”). And Plaintiffs’\ncomplaint contained allegations that could be construed as a traditional Equal Protection Clause\nchallenge. But that is not what the district court focused on in granting the preliminary injunction\nunder review. So that issue is not before us.\n 12\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 13 of 83\n\n\nqualifications or training for those who engage in the job. Indeed, election officials\n\nin Florida tasked with comparing signatures on ballots to those on file need not\n\nundergo formal training in handwriting analysis or receive formal guidelines for how\n\nto compare signatures. Democratic Exec. Comm., 2018 WL 5986766, at 2. And\n\nFlorida allows each county to apply its own standards and procedures for executing\n\nthe signature-match requirement, virtually guaranteeing a crazy quilt of enforcement\n\nof the requirement from county to county. Id. at 7 & n.5. While some counties\n\nmay make Herculean efforts to ensure that legitimate vote-by-mail or provisional\n\nvotes, or both, are counted, other counties may do very little to ensure even and\n\naccurate application of the signature-match requirements. See id. Florida’s scheme\n\nprohibits neither.\n\n And even if election officials uniformly and expertly judged signatures,\n\nrightful ballots still would be rejected just because of the inherent nature of\n\nsignatures. Citing a declaration by Dr. Linton A. Mohammed, a certified forensic\n\ndocument examiner, the DECF and the Nelson Campaign presented evidence that\n\ninnocent factors like the writer’s body position, writing surface, type of pen, and\n\nmental and physical states, as well as the surrounding noise, can alter a person’s\n\nsignature and produce mismatches. Consequently, legitimate vote-by-mail and\n\nprovisional voters, through factors out of their control, are burdened with the risk\n\nthat their ballots will incorrectly be rejected for signature mismatch.\n\n\n 13\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 14 of 83\n\n\n Recognizing this problem, in a 2016 case before the same district court that\n\nentered the preliminary injunction now under review, the district court tried to\n\nremedy the deficiencies in Florida’s signature-match scheme by mandating that\n\nthose with mismatched-signature ballots be given a chance to cure. Fla. Democratic\n\nParty, 2016 WL 6090943, at 9. In response to the court’s order, the Florida\n\nlegislature codified a cure provision into the election code. But as it turned out, the\n\nchanges did not adequately address the scheme’s shortcomings.\n\n Heading into the 2018 election, Florida law provided that the deadline for the\n\nsupervisor of elections to receive vote-by-mail ballots was 7 p.m. on the day of the\n\nelection. Fla. Stat. § 101.6103(2) (2008). Even though the opportunity to cure\n\nsignature mismatch should have been part and parcel of any constitutional use of the\n\nsignature-match protection after the district court’s 2016 opinion, Florida required a\n\ncure to be submitted by 5 p.m. on the day before the election—meaning that the\n\ndeadline to cure a rejected ballot came before the deadline for the supervisor to\n\nreceive the ballot in the first place. Fla. Stat. § 101.68(4)(a). And even more\n\nproblematically, the law did not require canvassing boards to even begin the\n\ncanvassing of vote-by-mail ballots and check for signature match before noon on the\n\nday after the election. 10 Id. § 101.68(2)(a) (“The county canvassing board may begin\n\n\n 10\n The Dissent takes issue with this legal conclusion and instead asserts that Florida law\nrequires the county supervisor of election to (1) immediately “compare the signature on the voter’s\n\n\n 14\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 15 of 83\n\n\nthe canvassing of vote-by-mail ballots at 7 a.m. on the 15th day before the election,\n\nbut not later than noon on the day following the election.”). So voters whose\n\nsignatures were deemed a mismatch might not learn that their vote would not be\n\ncounted until it was too late to do anything about it.\n\n\ncertificate with the signature on the voter’s registration entry,” and (2) “immediately notify the\nvoter” if the supervisor finds the signatures do not match. Dissent at 65. But the Dissent’s\ninterpretation of the governing statute is not consistent with either what that statute actually\nrequires or what, in practice, occurs in Florida. To reach its mistaken conclusion, the Dissent relies\non § 101.68(1) and (4)(a). Dissent at 65 & n.32. In relevant part, § 101.68(1) provides, “The\nsupervisor . . . shall receive the voted ballot, at which time the supervisor shall compare the\nsignature of the elector on the voter’s certificate with the signature of the elector in the registration\nbooks or the precinct register to determine whether the elector is duly registered in the county and\nmay record on the elector’s registration certificate that the elector has voted. . . . Except as\nprovided in subsection (4), after a vote-by-mail ballot is received by the supervisor, the ballot is\ndeemed to have been cast . . . .” (emphasis added). By its language, this provision requires the\nsupervisor to compare signatures and record all votes the supervisor deems to be legitimately cast.\nAs for votes the supervisor cannot certify as validly cast, the provision directs us to § 101.68(4).\nThat provision states, “The supervisor shall, on behalf of the county canvassing board,\nimmediately notify an elector who has returned a vote-by-mail ballot . . . that does not match the\nelector’s signature in the registration books or precinct register.” Id. (emphasis added). By its\nterms, this provision requires the supervisor to notify voters whose signatures do not match—but\nonly on behalf of the county canvassing board, not on the supervisor’s own. A third provision not\ncited by the Dissent also comes into play: § 101.68(2)(c)1. That provision directs, “The\ncanvassing board must, if the supervisor has not already done so, compare the signature of the\nelector on the voter’s certificate or on the vote-by-mail ballot cure affidavit as provided in\nsubsection (4) with the signature of the elector in the registration books or the precinct register . .\n. to determine the legality of that vote-by-mail ballot.” This provision tasks the canvassing board\nwith performing the signature-match function for ballots the supervisor, in exercising her authority\nunder § 101.68(1), cannot deem valid ballots. And that is why § 101.68(4) requires the supervisor,\non behalf of the canvassing board, to notify voters whose ballots have been rejected for signature\nmismatch. Indeed, evidence admitted during the hearing in this case bears this out. Leon County’s\nsupervisor of elections testified that while members of his staff immediately make an initial\ncomparison of signatures and approve some ballots, any ballot with a signature that the staff cannot\nvalidate is referred to the canvassing board for review—so it is the canvassing board that rejects\nthe ballots. Of course, nothing stops a county from going above and beyond and notifying voters\nof potential mismatch as soon as the supervisor’s staff flags a ballot for the canvassing board’s\nreview. But the relevant code provision requires only that the supervisor notify voters when an\nactual mismatch is found, and the evidence shows that only the canvassing board may make that\ndetermination.\n\n\n 15\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 16 of 83\n\n\n That is exactly what happened to former U.S. Congressman Patrick Murphy.\n\nA registered voter, Murphy explained in a sworn declaration to the district court that\n\nhe voted by mail using the same signature that he had used in the 2018 primary\n\nelection in Florida. Although Murphy had no issues with his signature before,\n\nMurphy’s ballot was rejected for mismatched signature on Election Day. Because\n\nthe cure deadline had already passed, Murphy could do nothing to have his ballot\n\ncounted. And Murphy was not alone: the record contains other sworn declarations\n\nwith stories of eligible voters who were similarly disenfranchised.\n\n On these facts, we have no trouble finding that Florida’s scheme imposes at\n\nleast a serious burden on the right to vote. 11 See League of Women Voters of N.\n\nCarolina v. North Carolina, 769 F.3d 224, 244 (4th Cir. 2014) (commenting that it\n\nis a “basic truth that even one disenfranchised voter—let alone several thousand—\n\nis too many”). This burden can be constitutional only if justified by legitimate state\n\ninterests of sufficient weight.\n\n b. The State’s Asserted Justifications for the Burden\n\n We therefore turn to the state’s interests. In considering the state’s interests,\n\nwe account for the points the NRSC raises here as well as those raised by the\n\nSecretary and Attorney General before the district court. The identified interests fall\n\n\n 11\n We need not and do not determine whether the burden imposed is anything more than\nserious, since on this record, as we explain, the state’s interests do not sufficiently justify the\nburden imposed.\n 16\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 17 of 83\n\n\ninto three general categories: preventing fraud; promoting the orderly, efficient, and\n\ntimely administration of the election; and ensuring fairness and public confidence in\n\nthe legitimacy of the election.\n\n We begin with Florida’s interest in combatting voter fraud and making certain\n\nthat only legitimate votes are counted. Without a doubt, Florida has a legitimate and\n\nstrong interest in preventing voter fraud. Common Cause, 554 F.3d at 1353-54. But\n\nthat interest is not mutually exclusive of vote-by-mail and provisional voters’\n\ninterest in not being disenfranchised through no fault of their own.\n\n And that’s the problem for Defendants. We must take into consideration not\n\nonly the “legitimacy and strength” of the state’s asserted interest, but also “the extent\n\nto which those interests make it necessary to burden” voting rights. Anderson, 460\n\nU.S. at 789 (emphasis added). Here, Defendants offer no satisfying explanation for\n\nwhy Florida cannot have both a robust signature-match protection and a way to allow\n\nevery eligible vote-by-mail and provisional voter whose ballot is mistakenly rejected\n\nan opportunity to verify their identities and have their votes count. Indeed, if a voter\n\nis able to cure the signature-match problem, no fraud protected against by the\n\nsignature-match provision even arguably occurs. So even without requiring the state\n\nto engage in narrow tailoring—that is, saying nothing about Florida’s lack of\n\n\n\n\n 17\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 18 of 83\n\n\nuniform training or standards from county to county12—Defendants have identified\n\nno fraud-prevention interest that justifies depriving legitimate vote-by-mail and\n\nprovisional voters of the ability to cure the signature mismatch, thereby\n\ndisenfranchising them.\n\n Next, we turn to Florida’s interest in the orderly, efficient, and quick\n\nadministration of an election. Again, we agree that Florida has an important interest\n\nin structuring and regulating its elections to avoid chaos and to promote the smooth\n\nadministration of its elections. See Burdick, 504 U.S. at 433. But that interest does\n\nnot warrant the complained-of burden on voters because Defendants have not\n\ndemonstrated that permitting voters who were belatedly notified of signature\n\nmismatch to cure their ballots would inordinately disrupt the smooth facilitation of\n\nthe election.\n\n As the district court noted, only about 4,000 ballots were rejected for signature\n\nmismatch at the time of its order—less than 5 hundredths of a percent of the more\n\nthan 9 million total ballots cast in Florida for the 2016 general election. Democratic\n\nExec. Comm., 2018 WL 5986766, at 9; Fla. Dep’t of State, Div. of Elections, Voting\n\nActivity by Ballot Type for 2016 General Election (last updated Mar. 24, 2017),\n\nhttps://dos.myflorida.com/media/697842/2016-ge-summaries-ballots-by-type-\n\n\n 12\n The availability of an effective cure process should incidentally also have the salutary\neffect of relieving the burden inflicted on voters by the unevenness of signature-match standards\nand training from county to county.\n 18\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 19 of 83\n\n\nactivity.pdf. Of those 4,000 ballots, not all were cast by eligible voters. And even\n\nfor those that were, only a portion of the eligible voters casting those votes were\n\nbelatedly notified. Even the NRSC has described this subset of injured voters as\n\n“tiny.” So it is difficult to see how—and Defendants have not shown how—a state\n\nequipped to deal with more than 9 million voters would be unduly burdened by\n\nproviding the fraction of a percent of injured voters an opportunity to cure signature\n\nmismatch and have their rightful ballots counted in accordance with the district\n\ncourt’s preliminary injunction.\n\n Nor, as Defendants suggested in the district court, does Lemons v. Bradbury,\n\n538 F.3d 1098 (9th Cir. 2008), support a different conclusion. In Lemons, the Ninth\n\nCircuit worried about the administrative difficulties associated with suddenly\n\nrequiring state officials to provide notice and a chance to cure to thousands of\n\npetition signers when no such requirement previously existed. See id. at 1104-05.\n\nBut here, Florida already had a cure mechanism for those with mismatched\n\nsignatures. See Fla. Stat. § 101.68(4)(a).\n\n And contrary to Defendants’ assertions, it is not too difficult to interpret and\n\napply the district court’s order. Mindful that time was of the essence as the counting\n\nof votes was already underway, the district court allowed for two days from the time\n\nof its order for certain injured voters to cure their ballots, demonstrating that a\n\nreasonable cure period provides 48 hours’ notice of the defect before a voter’s\n\n\n 19\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 20 of 83\n\n\nopportunity to cure expires. Democratic Exec. Comm., 2018 WL 5986766, at 1\n\nn.1, 9. Thus, anyone who received notice later than would allow them 48 hours to\n\ncure was belatedly notified. And consistent with our long practice of relying on the\n\nthreat of penalty of perjury to guard against dishonesty and fraud, see United States\n\nv. Yates, 438 F.3d 1307, 1318 (11th Cir. 2006), the district court’s order allows a\n\nvoter to attest that she was belatedly notified by declaring under penalty of perjury\n\nthat she did not timely receive actual notice of signature mismatch. 13\n\n Finally, we consider Florida’s interest in fundamental fairness and protecting\n\npublic confidence in the legitimacy of the election. Once again, we fully agree that\n\nFlorida enjoys legitimate and strong interests in these things. But in this case, these\n\nconsiderations actually swing decisively in favor of the DECF and the Nelson\n\nCampaign.\n\n On fundamental fairness, Defendants and the Dissent complain that the\n\ndistrict court has unfairly upset settled expectations by changing the rules mid-\n\ncontest. Dissent at 62, 72. We are not convinced.\n\n First, we note that the record here reflects that, in violation of the language of\n\nthe governing provisions, one county counted previously rejected ballots for which\n\n\n\n 13\n The Dissent faults the district court for not fashioning a more perfect preliminary\ninjunction. Dissent at 73-76. But given the circumstances and the district court’s broad discretion\nin shaping an injunction, and as we discuss infra at 30-32, the district court’s order falls within the\nrealm of reasonableness. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)\n(discussing district courts’ wide discretion in molding a preliminary injunction).\n 20\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 21 of 83\n\n\nit received cures after the deadline, since the Post Office had mistakenly held onto\n\ncure submissions beyond the deadline. We certainly do not criticize that county for\n\ntrying to ensure the affected voters were not disenfranchised through no fault of their\n\nown. And to the extent that that county’s actions can be viewed as a technical\n\n“wrong” under Florida’s election code, we do not ascribe to the idea that two wrongs\n\nmake a right.\n\n But the fact remains that Florida already applied changed rules mid-election\n\nto count vote-by-mail votes that did not satisfy Florida’s written rules. So if a\n\ngeneral expectation existed at some point that the rules would be enforced so as not\n\nto count even the votes of vote-by-mail voters whose ballots had been rejected\n\nthrough no fault of their own, as a matter of fact, Florida’s own actions decimated\n\nthat anticipation and effectively created a new expectation: that opportunity would\n\nbe created for the counting of legitimately cast ballots that were not counted through\n\nno fault of the voter.\n\n Second, to the extent that an unsettled expectation and unfairness may have\n\nexisted at the time the district court considered Plaintiffs’ motion for preliminary\n\ninjunction, it befell Plaintiffs. A realistic assessment of the facts here indicates that\n\nvote-by-mail voters who followed the ostensible deadline for their ballots only to\n\ndiscover that their votes would not be counted and that they would have no recourse\n\nwere the ones to experience a clash with their expectations and fundamental fairness.\n\n\n 21\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 22 of 83\n\n\nSee Bullock v. Carter, 405 U.S. 134, 143 (1972) (explaining that “the rights of voters\n\nand the rights of candidates do not lend themselves to neat separation” and that “[i]n\n\napproaching candidate restrictions, it is essential to examine in a realistic light the\n\nextent and nature of their impact on voters”).\n\n To understand why, we briefly visit the recent history of the cure provision in\n\nFlorida. In 2016, as we have noted, the same district court that issued the preliminary\n\ninjunction under review here examined Florida’s signature-match scheme and tried\n\nto address the problem afflicting the subset of voters whose signatures were found\n\nnot to have matched those on file but who were provided no opportunity to remedy\n\nthat problem. Under the 2016 scheme, a vote-by-mail voter had no opportunity to\n\ncure under the code if her ballot was rejected for signature mismatch. Fla.\n\nDemocratic Party, 2016 WL 6090943, at 1. The district court explained then that\n\nthe scheme existing at that time “categorically disenfranchised thousands of voters\n\narguably for no reason other than they have poor handwriting or their handwriting\n\nhas changed over time.” Id. at 7. These otherwise eligible voters, the district court\n\nsaid, were “robbed of one of our most basic and cherished liberties; namely, the right\n\nto vote and have that vote counted.” Id. at 8. To remedy the constitutional infirmity\n\nof the previous signature-match scheme, the district court ordered that those with\n\nmismatched-signature ballots be given a chance to cure. Id. at 9. Shortly after the\n\n\n\n\n 22\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 23 of 83\n\n\ndistrict court issued its order, Florida amended its election code to add a cure\n\nprovision.\n\n Against this backdrop, a fair expectation going into the 2018 election was that\n\nvote-by-mail voters would no longer be subjected to a situation where they would\n\nbe deprived of their right to vote by not having an opportunity to cure legitimately\n\ncast ballots rejected for signature mismatch. But the code’s remedy to make that\n\nexpectation a reality turned out, in practice, to be illusory in some instances.\n\n As we have noted, Florida’s stated deadline for ensuring that the Secretary\n\nreceived vote-by-mail ballots was later than the deadline to cure. And more\n\nsignificantly, canvassing boards were not required to start canvassing vote-by-mail\n\nballots until a day after the election—two days after the cure deadline. To make sure\n\nher ballot was counted, then, a voter had to know that the published 7 p.m. receipt\n\ndeadline did not tell the whole story. She had to anticipate that her ballot would be\n\nrejected for signature mismatch and take affirmative steps like submitting a ballot\n\nwell in advance of the published deadline—which still would not guarantee that she\n\nwould be notified of any signature mismatch until it was too late to do anything to\n\nremedy the problem. Not only is this unrealistic and unreasonable, but as the voters’\n\ndeclarations in this case show, it renders the opportunity to cure illusory in some\n\ncircumstances. In so doing, it defeats the purpose of requiring Florida to add a cure\n\nprovision as expressed in the district court’s 2016 order.\n\n\n 23\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 24 of 83\n\n\n For these reasons, we respectfully reject Defendants’ and the Dissent’s\n\narguments that the preliminary injunction effected an unfair change to the “rules”\n\nand that voters whose votes were not counted for signature mismatch necessarily\n\nhave only themselves to blame. Dissent at 62, 68. It is one thing to fault a voter if\n\nshe fails to follow instructions about how to execute an affidavit to make her vote\n\ncount, see Roe v. Alabama, 43 F.3d 574, 580-81 (11th Cir. 1995), or if she\n\ninexcusably fails to enroll in a political party by a stated deadline, Rosario v.\n\nRockefeller, 410 U.S. 752, 757-58 (1973). But it is quite another to blame a voter\n\nwhen she may have done nothing wrong and instead may have simply had the bad\n\nluck to have had her ballot reviewed by a particularly strict (and not formally trained)\n\njudge of signatures, and then to not have been notified of the problem until it was\n\ntoo late to do anything about it.\n\n For these same reasons, we disagree with the Dissent that the district court\n\nimproperly (1) enfranchised those who did not follow the rules, (2) disenfranchised\n\nthose who would have voted or cured if not for the rules, and (3) diluted the votes of\n\nthose who properly voted according to the rules. Dissent at 72-73.\n\n First, to the extent the district court enfranchised people, it was those vote-by-\n\nmail voters who reasonably expected to be afforded a cure if their ballots were\n\nrejected for mismatched signature. Second, even assuming people exist who would\n\nhave voted but did not because of the defective cure provision, that number is\n\n\n 24\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 25 of 83\n\n\nnominal at best. Even Bad Luck Schleprock 14 would not have been likely to\n\nanticipate that his ballot might be rejected for signature mismatch and that he might\n\nnot be notified about this problem in time to do anything to correct it, and then decide\n\nthat for this reason, he would not submit a ballot in the first place. Finally—even\n\nsetting aside the fact that Florida already acted on its own to count votes that did not\n\nstrictly comply with the rules—the existing counted votes were artificially over-\n\nweighted because the previous vote pool excluded the votes of those who followed\n\nthe vote-by-mail rules yet whose votes were excluded through no fault of their own.\n\nSo allowing these voters an opportunity to have their votes counted did not\n\nimpermissibly dilute the votes of those who followed the rules.\n\n Defendants and the Dissent fret that allowing this small group of affected\n\nvoters an opportunity to demonstrate their eligibility to vote undermines the public’s\n\nfaith in elections. Dissent at 73. But we respectfully disagree. In our view, doubling\n\ndown on the disenfranchisement of vote-by-mail voters who complied with Florida’s\n\npublished deadline is not the way to promote faith in elections.\n\n c. The Weighing of the Burden on the Right to Vote Against\n the State’s Justifications\n\n\n 14\n Bad Luck Schleprock was a character in the 1970s Hanna-Barbera television series The\nPebbles and Bamm-Bamm Show and The Flintstone Comedy Hour. See The Pebbles and Bamm-\nBamm Show, IMDB, https://www.imdb.com/title/tt0066699/?ref_=nv_sr_1 (last visited Feb. 15,\n2019); The Flintstone Comedy Hour, IMDB, https://www.imdb.com/title/tt0068073/ (last visited\nFeb. 15, 2019). He perpetually had a rain cloud over his head and always experienced misfortune.\nSee, e.g., Schleprock’s New Image, IMDB, https://www.imdb.com/title/tt1904367/ (last visited\nFeb. 15, 2019).\n 25\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 26 of 83\n\n\n Finally, we come to the point in the Anderson-Burdick analysis where we\n\nweigh the serious burden Florida’s signature-match scheme imposes on vote-by-\n\nmail voters who have belatedly been notified of a signature mismatch, against\n\nFlorida’s interests in perpetuating this scheme. We conclude on this record that the\n\nserious burden on voters outweighs Florida’s identified interests: the state’s interest\n\nin preventing fraud is not in conflict with the voters’ interest in having their\n\nlegitimately-cast ballots counted; the state has not shown that its interest in\n\nfacilitating timely and orderly election processing will be impaired by providing the\n\ninjured voters with a reasonable opportunity to have their votes counted; and public\n\nfaith in elections benefits from providing injured voters the opportunity to have their\n\nlegitimately cast ballots counted when the reason they were not counted was not the\n\nvoters’ fault.\n\n For these reasons, the NRSC has failed to make a strong showing that it is\n\nlikely to succeed on the merits of the constitutional issue.\n\n ii. The NRSC has not made a strong showing that it is likely to\n succeed on the merits of its laches argument.\n\n The NRSC also argues that the equitable doctrine of laches bars the district\n\ncourt’s preliminary injunction. In response, Plaintiffs urge that laches does not apply\n\nwhen the plaintiff seeks only to stop continuing constitutional violations. We need\n\nnot consider whether laches applies to bar prospective relief from constitutional\n\nharms, because the NRSC cannot satisfy the laches elements.\n 26\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 27 of 83\n\n\n To succeed on a laches claim, the NRSC must demonstrate that Plaintiffs\n\ninexcusably delayed bringing their claim and that the delay caused it undue\n\nprejudice. United States v. Barfield, 396 F.3d 1144, 1150 (2005). This they cannot\n\ndo.\n\n At the time Plaintiffs brought this action, only about a year had passed since\n\nthe Florida legislature amended the signature-match scheme by adding the defective\n\ncure provision, see Fla. Stat. § 101.68 (effective June 2, 2017), and the DECF had\n\njust litigated the topic of signature mismatches, see Fla. Democratic Party, 2016\n\nWL 6090943, at 1. As the district court aptly noted, the DECF did not need to\n\nrelentlessly “search and destroy every conceivable potential unconstitutional\n\ndeprivation,” Democratic Exec. Comm., 2018 WL 5986766, at 8, but could catch\n\nits breath, take stock of its resources, and study the result of its efforts. In fact,\n\nbetween Florida’s adoption of the challenged provisions and the November 2018\n\nelection, the only other major statewide election to occur was the 2018 primary\n\nelection, which wrapped up just weeks before the November 2018 election. So as a\n\nmatter of fact, we cannot find inexcusable delay.\n\n Nor can the NRSC show undue prejudice arising from any delay, since the\n\nNRSC has not established that any of the harms it anticipates are anything more than\n\nminimal or nonexistent. As we have mentioned, the state’s administrative burden\n\n\n\n\n 27\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 28 of 83\n\n\nwas nominal; its interest in preventing fraud was unaffected; and public faith in the\n\nelection is better-served by allowing Plaintiffs’ suit.\n\n On this record, the NRSC cannot make a strong showing that it is likely to\n\nsucceed on the merits of its laches argument.\n\n B. The remaining Nken factors similarly disfavor a stay.\n\n The remaining Nken factors do not persuade us to exercise our discretion to\n\nstay the district court’s injunction.\n\n We begin with irreparable injury. The NRSC claims that it will suffer\n\nirreparable injury because the district court’s order will trigger a chaotic restart of\n\nthe election, cause the NRSC to expend unrecoverable resources on a get-out-the-\n\ncure campaign, and create the “substantial risk” of counting late-cured ballots. We\n\ndisagree.\n\n First, the NRSC’s concern about a chaotic restart of the election is\n\nsignificantly overstated, as we have explained in our discussion about the\n\nmanageability of the district court’s order. Second, the threat of penalty of perjury\n\nsafeguards against false claims of belated notification. Plus, the NRSC’s assertion\n\nabout the risk of undiscoverable fraud is entirely unsubstantiated.\n\n This leaves the NRSC’s contention that the injunction forces it to expend\n\nunrecoverable resources to encourage voters to cure their ballots. But even assuming\n\nthis to be true, that injury is not enough to overcome the NRSC’s inability to show\n\n\n 28\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 29 of 83\n\n\nlikelihood of success on the merits. See Virginian Ry. Co. v. United States, 272 U.S.\n\n658, 672 (1926) (“A stay is not a matter of right, even if irreparable injury might\n\notherwise result to the appellant.”).\n\n As for the public interest and any harm caused by a stay, Defendants similarly\n\nhave failed to show that these factors tilt in their favor. A stay would disenfranchise\n\nmany eligible electors whose ballots were rejected by a flawed signature-match\n\nscheme. And public knowledge that legitimate votes were not counted due to no\n\nfault of the voters—and with no reasonable notice to the voters that their votes would\n\nnot be counted and no opportunity to correct that situation—would be harmful to the\n\npublic’s perception of the election’s legitimacy. Yet protecting public confidence in\n\nelections is deeply important—indeed, critical—to democracy. See Crawford v.\n\nMarion Cty. Election Bd., 553 U.S. 181, 197 (2008) (plurality). And the public\n\ninterest is served when constitutional rights are protected. Melendres v. Arpaio, 695\n\nF.3d 990, 1002 (9th Cir. 2012). So the third and fourth Nken factors do not favor\n\ngranting the stay.\n\n In short, the NRSC has failed to make the requisite showing to justify a stay\n\nof the district court’s preliminary injunction under the Nken factors.\n\nIV. Response to the Dissent\n\n Finally, we address the Dissent’s remaining arguments. These arguments\n\narise from the Dissent’s mistaken notions that the district court improperly reframed\n\n\n 29\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 30 of 83\n\n\nthe issue in the case, producing an injunction that was flawed. We respectfully\n\ndisagree with the Dissent’s reasoning. To explain why, we begin by reviewing the\n\ndistrict court’s charge when addressing a motion for preliminary injunction, as well\n\nas the relief the district court ultimately ordered. We then respond to the Dissent’s\n\nother arguments based on its mistaken notion.\n\n A. The district court was empowered to enter the narrow and reasonable\n preliminary injunction it did.\n\n “Crafting a preliminary injunction is an exercise of discretion and judgment,\n\noften dependent as much on the equities of a given case as the substance of the legal\n\nissues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087\n\n(2017). In considering whether to grant an injunction, a court evaluates the\n\napplicant’s likelihood of success on the merits, whether the applicant will suffer\n\nirreparable harm without the injunction, the balance of equities, and the public\n\ninterest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008).\n\n If the court decides to grant an injunction, it must also ascertain what relief to\n\nprovide, keeping in mind that the purpose of the injunction is not to conclusively\n\ndetermine the rights of parties, but only to balance the equities in the interim as the\n\nlitigation proceeds. Trump, 137 S. Ct. at 2087. In executing its duties, the court\n\nmust pay particular attention to the public consequences of any preliminary relief it\n\norders. See Winter, 555 U.S. at 24. So it is axiomatic that a district court “need not\n\ngrant the total relief sought by the applicant but may mold its decree to meet the\n 30\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 31 of 83\n\n\nexigencies of the particular case.” Trump, 137 S. Ct. at 2087 (quoting 11A Charles\n\nAlan Wright, et. al., Federal Practice and Procedure § 2947 (3d ed.)).\n\n Here, the district court did just that. The preliminary injunction was quite\n\nlimited. Plaintiffs requested the district court categorically enjoin the enforcement\n\nof the signature-match scheme as to all vote-by-mail and provisional ballots,\n\nmeaning they asked the court to require all vote-by-mail and provisional ballots that\n\nhad been rejected for signature mismatch to be counted.\n\n But the district court did “not grant the total relief sought.” See id. Rather, it\n\n“mold[ed] its decree to meet the exigencies of the particular case.” Id. Instead of\n\ndirecting every mismatched ballot to be counted, the district court ordered only the\n\nballots of those voters who had been belatedly notified of the mismatch to be\n\ncounted—and only after those voters cured their ballots within a short window of\n\ntime. That was well within its discretion. Indeed, nothing requires a district court\n\nto award all or nothing when it comes to a preliminary injunction. See id.\n\n And in this case, the district court’s targeted injunction made sense. The\n\nsubset of voters who received timely notice of the signature mismatch were already\n\nafforded the cure provision that the district court had ordered in 2016. So they at\n\nleast had an opportunity to cure a ballot flagged for signature mismatch. But the\n\nsame could not be said of those voters who were not timely notified. They faced the\n\nsame risk of disenfranchisement that the district court identified as unconstitutional\n\n\n 31\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 32 of 83\n\n\ntwo years earlier. The district court carved away much of the relief Plaintiffs\n\npreliminarily requested to award just the portion of the relief Plaintiffs sought that it\n\npreviously found to be constitutionally demanded: an opportunity to cure.\n\n Striking down the signature-match scheme wholesale may have been a\n\npossibility between elections if enough time existed for the legislature to enact a\n\nreplacement or prohibit vote-by-mail and provisional voting. But given the timing,\n\ntaking that course would have awarded too much relief because it might have\n\nallowed some fraudulent ballots to be counted. On the other hand, doing nothing\n\nwould have given too little relief because it risked disenfranchising voters. So the\n\ndistrict court’s Goldilocks solution was just right to address the apparent hole in the\n\nsignature-match process—that is, the lack of a reasonable opportunity to cure a\n\nsignature mismatch. And the awarded relief was a subset of the relief Plaintiffs\n\nsought. That was within the district court’s discretion under the circumstances.\n\n B. The district court did not deny Defendants an opportunity to be heard\n on the relief it ultimately granted.\n\n The Dissent asserts that the district court reframed the question presented by\n\nPlaintiffs from whether the signature-match scheme can withstand constitutional\n\nscrutiny to whether the signature-match scheme and an adequate cure provision can\n\nwithstand constitutional scrutiny. Dissent at 52-53, 71. In the Dissent’s view, the\n\ndistrict court deprived Defendants of due process by denying them an opportunity to\n\nrespond to the allegedly reframed question. Id. at 70-72.\n 32\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 33 of 83\n\n\n Again, we must respectfully disagree.\n\n First, the district court’s grant of partial relief neither reframed the issue nor\n\ndenied Defendants an opportunity to discuss the cure procedure. The Dissent\n\nreaches the contrary conclusion because it equates partial relief with reframing the\n\nquestion. But as we have explained, that is not the case. See supra at 30-31 (quoting\n\nTrump, 137 S. Ct. at 2087) (citation and quotation marks omitted) (a district court\n\n“need not grant the total relief sought by the applicant but may mold its decree to\n\nmeet the exigencies of the particular case”).\n\n Here, Plaintiffs asked the court to require every vote that was rejected for\n\nsignature-mismatch to be counted. That would have entailed throwing out all\n\nsignature-mismatch provisions as an unconstitutional burden on their right to vote.\n\nSo naturally, the district court had to examine the entire signature-mismatch\n\nprocess—including Fla. Stat. § 101.68(4), the cure procedure, which Plaintiffs\n\nexpressly identified in their complaint—to evaluate Plaintiffs’ claim that the\n\nsignature-match scheme unconstitutionally disenfranchised vote-by-mail voters\n\nwhose signatures had been mismatched.\n\n The preliminary injunction the court eventually entered granted only a portion\n\nof Plaintiffs’ requested relief, preserving as much of the statutory scheme as\n\npossible, given the court’s previous ruling that the signature-match provisions\n\nwithout an acceptable cure process unconstitutionally burdened the right to vote. See\n\n\n 33\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 34 of 83\n\n\nFla. Democratic Party, 2016 WL 6090943, at 1. Granting only part of the relief\n\nsought is not reframing the question.\n\n Plus, every party pointed the district court to the cure provision in their filings.\n\nIn their complaint, Plaintiffs first noted that the cure deadline precedes the deadline\n\nfor receipt of vote-by-mail ballots before alleging that “scores of voters are\n\ndisenfranchised based on the timing of the mail.” Plaintiffs reiterated this point in\n\ntheir memorandum in support of their preliminary injunction request, again arguing\n\nthat “scores of voters who are unable to meet [the cure] deadline will be denied the\n\nright to vote.” And all three Defendants independently directed the court’s attention\n\nto the cure provision in their filings, in an effort to show that the signature-match\n\nscheme contained adequate procedural protections. Thus, both sides raised the cure\n\nprovision, and the district court’s consideration of whether the signature-match\n\nscheme and an adequate cure provision can withstand constitutional scrutiny was\n\nentirely appropriate.\n\n Beyond that, the record reflects that the topic of cure came up repeatedly\n\nduring the preliminary injunction hearing. Witnesses were specifically questioned\n\nabout the cure period and notice. See, e.g., Transcript of Nov. 14, 2018, Hearing at\n\n23, Democratic Exec. Comm. of Fla. v. Detzner, 347 F. Supp. 3d 1017 (No. 4:18-\n\nCV-520-MW/MJF) (“So all of the ballots received between 5:30 p.m. on the date\n\nbefore election day and 7 p.m. on election day, those ballots cannot be cured if\n\n\n 34\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 35 of 83\n\n\nthere’s a signature mismatch issue; is that right?” “But if you don’t receive [the\n\ncure documentation] before 5:30 p.m. the day before election day, then [the signature\n\nmismatch] can’t be cured; right?”), 24 (“[D]o you have any idea how many cure\n\naffidavits you got after that 5:30 deadline?”), 30 (“[I]f an individual wants to make\n\nthe argument . . . that a mismatched signature is actually a signature match, . . . they\n\ncannot make that argument [after 5 p.m. the day before the election and between\n\nnoon on Saturday, even though a person may challenge the legality of a vote-by-\n\nmail ballot under Section 101.168 during that period]; right?”), 70 (“[W]hat is your\n\nunderstanding of the process to challenge a ballot by either an elector, a voter, or a\n\ncandidate as it relates to challenging something because there is not a matching\n\nsignature?”). And Defendants did not object.\n\n Not only that, but the court itself asked Plaintiffs’ counsel, “Why would I not\n\norder—if [Plaintiffs] were to win, why wouldn’t I order some process where there\n\nwould be an opportunity to, for example, challenge the rejection of the votes as\n\nopposed to just outright counting them?” Transcript of Nov. 14, 2018, Hearing at\n\n97-98. And Plaintiffs’ counsel responded, “[I]f this Court wanted to grant these\n\nvoters an opportunity to cure their vote-by-mail ballots, signature mismatches, . . .\n\nthere’s a way to do that . . . .” Id. at 100. Plaintiffs’ counsel then went on to suggest\n\n“eliminat[ing] all instances when a ballot can be tossed for a signature mismatch and\n\nthe voter be given zero opportunity to cure that signature mismatch.” Id. at 106.\n\n\n 35\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 36 of 83\n\n\nThe court responded that Oregon’s “14-day period after the election to fix . . .\n\nsignatures” provides “a real opportunity to fix it.” Id. at 107.\n\n And when the district court asked what alternative relief Plaintiffs sought,\n\nPlaintiffs expressly asked the court to fashion a more modest injunction granting\n\nonly partial relief—specifically, “for all of these voters whose ballots have been\n\nrejected for signature mismatch, the alternative relief would be to grant these voters\n\na chance to cure and extend these deadlines to give these voters a chance to have\n\ntheir ballots counted.” Id. at 111. Plaintiffs’ counsel also argued that the signature-\n\nmismatch scheme “impose[s] an undue burden . . . to the extent that it deprives\n\nindividuals [of] the right to vote, and it does so by depriving them [of] the right to\n\ncure their ballot.” Id. at 200.\n\n As for Defendants, the court asked them, “Why would the world come to an\n\nend if, in the next couple of days before the 18th, if I entered an order today that said\n\n. . . that if somebody wants to challenge the rejection of their ballot, they can do so\n\nbetween now and the evening of the 17th.” Id. at 127-28. It further inquired, “Why\n\ndoes a Florida Statute, that does not give an opportunity to challenge the decision of\n\nthe canvassing board comport with due process?” Id. at 167.\n\n Clearly, the cure issue was before the district court, and Defendants had an\n\nopportunity to be heard on it.\n\n C. To determine that Plaintiffs enjoyed a likelihood of success on the\n merits, the district court was not required to grant the entire preliminary\n 36\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 37 of 83\n\n\n injunction Plaintiffs originally requested nor ameliorate the right to\n vote for every voter whose vote was not counted because of signature\n mismatch.\n\n Next, we turn to the Dissent’s suggestion that the district court was required\n\nto find that likelihood of success on the merits turned on whether granting the\n\nrequested injunction in total was appropriate. That mistaken notion elides the\n\ndifference between the merits and the remedy and incorrectly suggests that the\n\ndistrict court’s discretion is limited to an all-or-nothing choice when it comes to\n\nordering injunctive relief. We have already explained why that is not correct. See\n\nsupra at 31.\n\n In a somewhat related vein, the Dissent also contends that the district court’s\n\norder offered no real relief to voters subjected to a flawed signature-match scheme\n\nbecause disenfranchisement is irreparable. Dissent at 60 (“Approximately 5,000\n\n[vote-by-mail] and provisional voters had been disenfranchised . . . by the operation\n\nof the Code’s standardless signature-matching provisions, but they received no\n\nrelief. The Court gave them no relief because the disenfranchisement could not be\n\nundone.”) (quotation marks omitted). We respectfully disagree with the notion that\n\nthe district court offered no relief.\n\n As the Dissent itself notes, rejection for signature mismatch does not\n\nnecessarily mean disenfranchisement. See Dissent at 68 (explaining how a voter\n\ncould cure a ballot rejected for mismatched signature). Some voters, by\n\n\n 37\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 38 of 83\n\n\nhappenstance, will have had a meaningful opportunity to cure because they received\n\ntimely notice of a mismatched signature. And as for the voters who belatedly\n\nreceived notice of signature mismatch, their disenfranchisement was not assured\n\nunless the district court declined to award relief. But here, the district court entered\n\nits preliminary injunction providing them with the same opportunity to cure that\n\nother vote-by-mail voters had had. Those who took advantage of the district court’s\n\nrelief had their ballots counted and were able to avert disenfranchisement.\n\n D. The district court’s preliminary injunction did not violate principles of\n federalism.\n\n The Dissent’s last attack on the district court’s preliminary injunction alleges\n\nthat the court offended principles of federalism by rewriting Florida’s election laws.\n\nDissent at 76-79. According to the Dissent, if Florida’s law were truly\n\nunconstitutional, principles of federalism dictate that the district court’s only\n\nrecourse was to strike the signature-match scheme down in its entirety. Id. at 77-78\n\n& n.42. We do not share the Dissent’s view for three reasons.\n\n First, the district court was not adjudicating final judgment. For the\n\nemergency preliminary injunction motion before it, the district court’s duty was “not\n\nto conclusively determine the rights of parties, but only to balance the equities in the\n\ninterim as the litigation proceeds.” Trump, 137 S. Ct. at 2087. That’s exactly what\n\nthe court did.\n\n\n\n 38\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 39 of 83\n\n\n Second, while federalism certainly respects states’ rights, it also demands the\n\nsupremacy of federal law when state law offends federally protected rights. See\n\nPuerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (rejecting the premise that states\n\nand the federal government should always be viewed as coequal sovereigns and\n\nexplaining that “[i]t has long been a settled principle that federal courts may enjoin\n\nunconstitutional action by state officials.”); Reynolds v. Sims, 377 U.S. 533, 584\n\n(1964) (“When there is an unavoidable conflict between the Federal and a State\n\nConstitution, the Supremacy Clause of course controls.”). Indeed, Ex parte Young,\n\n209 U.S. 123, which authorizes suit against the Secretary in her official capacity in\n\nthis case, was designed to “give[] life to the Supremacy Clause.” Green v. Mansour,\n\n474 U.S. 64, 68 (1985). So to the extent the district court concluded that any aspect\n\nof the signature-match scheme unconstitutionally burdened vote-by-mail voters’\n\nfundamental right to vote, it had a duty to strike down the offending part.\n\n And third, rather than undermining Florida’s sovereignty, the preliminary\n\ninjunction’s solution actually respected it. For purposes of the preliminary\n\ninjunction, instead of throwing out the plausibly legal with the constitutionally\n\nproblematic, the district court narrowly tailored its relief to home in on the one\n\nlimited aspect of Florida’s signature-match scheme it already found unduly burdened\n\nvote-by-mail voters’ right to vote. And it preserved application of the rest of the\n\nscheme in the interim.\n\n\n 39\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 40 of 83\n\n\nV. Conclusion\n\n For these reasons, we deny the NRSC’s motion to stay the district court’s\n\npreliminary injunction.\n\n\n\n\n 40\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 41 of 83", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368564/", "author_raw": "ROSENBAUM, Circuit Judge:"}, {"author": "TJOFLAT, Circuit Judge, dissenting", "type": "dissent", "text": "TJOFLAT, Circuit Judge, dissenting:\n\n This case concerns one of the most important rights, the right to vote, in two\n\nof the most hotly contested 2018 midterm elections. Plaintiffs—alleging that the\n\nsignature-matching provisions of Florida’s Election Code violated the Equal\n\nProtection Clause—requested that the District Court enter an injunction requiring\n\nall vote-by-mail ballots rejected for signature mismatch to be counted. Rather than\n\ngranting or denying the relief the Plaintiffs actually asked for, the District Court\n\ntook the unprecedented step of repleading Plaintiffs’ case and granting relief\n\ncompletely inconsistent with what Plaintiffs requested. Because we should have\n\nstayed the District Court’s inexplicable and extraordinary grant of relief but did\n\nnot, I respectfully dissent.\n\n * * \n\n This case is about vote-by-mail (“VBM”) and provisional ballots that were\n\nrejected during the 2018 general election due to signature mismatch. Under\n\nFlorida law, a VBM voter fills out his ballot, puts it in a mailing envelope, signs\n\nthe voter’s certificate on the back of the envelope, and mails it to the county\n\nsupervisor of elections. 1 For the county canvassing board to count the ballot, the\n\nvoter’s signature on the envelope certificate must match the signature in his voter’s\n\n\n\n\n 1\n See Fla. Stat. §§ 101.6103(1)–(3) (2018).\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 42 of 83\n\n\nregistration entry. 2 If the signatures do not match, a VBM voter may submit an\n\naffidavit with identification to cure the defect.3 The voter must deliver his cure\n\naffidavit to the county supervisor of elections by the deadline—5 p.m. the day\n\nbefore the election—for his VBM vote to count. 4\n\n A provisional voter must make a slightly different submission. Because his\n\neligibility to vote cannot be determined when he appears at his precinct to vote, he\n\ncasts a provisional ballot and signs the voter’s certificate. 5 Not later than 5 p.m. on\n\nthe second day following the election, he may submit to the supervisor of elections\n\nevidence supporting his eligibility to vote at the precinct.6 The canvassing board\n\nthen examines the evidence, and if it finds the voter eligible, compares the\n\nsignature on the voter’s certificate with the signature on the voter’s registration\n\nentry. 7 If they match, the provisional ballot is counted. 8\n\n\n\n\n 2\n See id. §§ 101.6103(5), 101.68(1).\n 3\n Id. § 101.68(4)(a). The identification requirement may be met by means of a photo\n(Tier I) or non-photo (Tier 2) ID. Id. § 101.68(4)(c). If a Tier 2 ID is used, the signature on the\ncure affidavit must match the signature in the registration entry. Id. §§ 101.68(2)(c)(1)(a)–(b).\n 4\n Id. § 101.68(4)(a).\n 5\n Id. § 101.048(1).\n 6\n Id.\n 7\n Id. §§ 101.048(2)(a)–(b).\n 8\n Id. § 101.048(2)(b)(1).\n References to “VBM and provisional voters” are, unless indicated otherwise, to VBM\nand provisional voters whose ballots had been, or might be, rejected because the signature on the\n“voter’s certificate” on the envelope enclosing the ballot did not match the signature on the\n“registration entry.” “Registration entry” refers to the “registration books or the precinct\nregister” that contains the putative voter’s signature.\n\n 42\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 43 of 83\n\n\n The Democratic Executive Committee of Florida, on behalf of Democratic\n\ncandidates and voters throughout the state, and Bill Nelson for U.S. Senate\n\n(collectively, “Plaintiffs”) brought this lawsuit against Florida Secretary of State\n\nKen Detzner (the “Secretary”) on November 8, 2018, two days after the polls for\n\nthe general election had closed and the county supervisors of elections had\n\nannounced the results of all early voting and VBM ballots that had been counted.9\n\nPlaintiffs wanted a federal judgment declaring the signature-matching provisions\n\nof the Election Code 10 unconstitutional and enjoining the Secretary to direct the\n\ncounty supervisors of elections to count all of the votes cast by VBM and\n\nprovisional ballots that had been, or might be, rejected due to signature\n\nmismatch. 11 Democratic Exec. Comm. v. Detzner, __ F. Supp. 3d __, No. 4:18-\n\nCV-520-MW/MJF, 2018 WL 5986766, at 3 (N.D. Fla. Nov. 15, 2018). Plaintiffs\n\nalleged that rejecting ballots based on a signature mismatch violated the VBM\n\nvoters’ rights under the Equal Protection Clause of the Fourteenth Amendment,\n\nciting Bush v. Gore, 12 because the signatures are compared without a standard and\n\n\n\n 9\n “The canvassing board shall report all early voting and all tabulated vote-by-mail results\nto the Department of State within 30 minutes after the polls close. Thereafter, the canvassing\nboard shall report . . . updated precinct election results to the department at least every 45\nminutes until all results are completely reported.” Fla. Stat. § 102.141(4)(b).\n 10\n I refer to the relevant Florida statutes as the “Election Code” or “Code.”\n 11\n Plaintiffs also asked the Court to toll the county canvassing boards’ deadline for\nsubmitting “unofficial” election results to the Department of State to ensure that all VBM and\nprovisional ballots would be counted and included in all submitted election results.\n 12\n 531 U.S. 98, 121 S. Ct. 525 (2000) (per curiam).\n 43\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 44 of 83\n\n\nthe decision is therefore arbitrary. Consequently, some VBM and provisional\n\nballots had been erroneously rejected, which denied those voters the right to vote.\n\n After it granted the Republican National Senatorial Committee (“RNSC”)\n\nleave to intervene and entertained the parties’ submissions, the District Court\n\nconcluded that, as Plaintiffs alleged, the Election Code’s standardless signature-\n\nmatching process had arbitrarily deprived “potentially thousands of VBM [and\n\nprovisional] voters . . . of the right to cast a legal vote,” in violation of the Equal\n\nProtection Clause. Democratic Exec. Comm., 2018 WL 5986766, at 8. But it\n\ndeclined to grant the preliminary injunction Plaintiffs sought—that all of the VBM\n\nand provisional ballots be counted.\n\n The Court’s unwillingness to grant the relief Plaintiffs were seeking did not\n\nend the matter. Acting on its own initiative and without notice to the parties, the\n\nCourt shifted gears. Ignoring the fact that the Code’s standardless signature-\n\nmatching process had deprived some VBM and provisional voters of the right to\n\nvote, the Court (1) acted as if the violation had not occurred, (2) declared that the\n\nprovision that afforded VBM voters an opportunity to cure “mismatched signature\n\nballots” had been “applied unconstitutionally, id. at 9, and (3) enjoined the\n\nSecretary to direct the county supervisors of elections to\n\n allow [VBM] voters who have been belatedly notified [that] they have\n submitted a mismatched-signature ballot to cure their ballots by\n November 17, 2018, at 5 p.m. The supervisors of elections shall\n allow mismatched-signature ballots to be cured in the same manner\n 44\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 45 of 83\n\n\n and with the same proof a mismatched-signature ballot could have\n otherwise been cured before November 5, 2018, at 5:00 p.m.\n\nId. 13\n\n This is the injunction now before us.14 The RNSC immediately appealed the\n\norder and moved this Court to stay its enforcement. We declined the stay on the\n\ntheory that the RNSC failed to make the required showing under Nken v. Holder,\n\n556 U.S. 418, 434, 129 S. Ct. 1749, 1761 (2009), including “a strong showing that\n\n[it was] likely to succeed on the merits.” Order at 2.15 I dissented because the\n\nRNSC made the required showing here, and now I write to explain why.\n\n The RNSC demonstrated that it was likely to succeed on the merits of its\n\nappeal. As the District Court’s injunctive order clearly implies, Plaintiffs did not\n\nhave “a substantial likelihood of success on the merits” because the relief they\n\n\n\n\n 13\n Plaintiffs had not challenged the Election Code’s cure provisions, nor had they sought\nany relief specifically for VBM voters who had been “belatedly notified” that their ballots were\nrejected due to mismatching signatures.\n 14\n The District Court did not explain why it granted this injunction rather than the one\nPlaintiffs had requested, except to say that “in balancing the equities for this emergency motion,\nthis [i.e., the injunction before us] is the only constitutional cure that takes into account all the\nparties’ concerns.” Id. at 9. The implication is that the relief Plaintiffs requested would not\nhave been an appropriate “constitutional cure.”\n 15\n In addition, the RNSC needed to show that irreparable injury would occur without a\nstay, the stay would not cause substantial injury to other parties, and a stay was in the public\ninterest. Nken, 556 U.S. at 434, 129 S. Ct. at 1761.\n\n\n 45\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 46 of 83\n\n\nsought—the counting of all VBM and provisional ballots rejected for lack of\n\nmatching signatures—could not be granted. 16\n\n To show why the RNSC is likely to prevail here, I trace the District Court’s\n\nanalysis of Plaintiffs’ equal protection claim from beginning to end. In one\n\nfleeting moment, the Court found that Plaintiffs were likely to succeed on their\n\nclaim. Then, the Court shifted gears and reframed Plaintiffs’ claim. In turn, it\n\ngranted a preliminary injunction that matched the reframed claim and gave a\n\nremedy to a subset of VBM voters—those who, based on the Court’s mistaken\n\nreading of the Code, had been “belatedly notified” that their ballots were rejected\n\ndue to signature mismatch. The remedy was a chance to cure the mismatch.\n\n\n\n\n 16\n The questions presented by the RNSC’s motion for a stay before this Court and\nPlaintiffs’ motion for a preliminary injunction before the District Court were highly similar. As\nthe Nken Court put it,\n\n [t]here is substantial overlap between [the factors governing the granting of a\n stay] and the factors governing preliminary injunctions; not because the two are\n one and the same, but because similar concerns arise whenever a court order may\n allow or disallow anticipated action before the legality of that action has been\n conclusively determined.\n\n556 U.S. at 434, 129 S. Ct. at 1761 (citation omitted). Both questions focus on the likelihood of\nsuccess on the merits—on appeal in one setting, at trial in the other. Here, Plaintiffs are likely to\nsucceed on the merits of their appeal if they can likely show that the District Court abused its\ndiscretion by issuing the preliminary injunction. In the District Court, Plaintiffs had to show\nthey were likely to succeed on the merits of their equal protection claim. Of course, they were\nlikely to succeed on the merits only if the District Court could grant them the injunctive relief\nthey sought—the counting of all VBM and provisional ballots that might be rejected due to\nsignature mismatch.\n\n\n 46\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 47 of 83\n\n\n My discussion proceeds as follows. Part I reviews Plaintiffs’ complaint and\n\nits motion for a preliminary injunction.\n\n Part II recounts the step-by-step process the Court used to conclude that\n\nPlaintiffs had a substantial likelihood of success on the merits of their claim and\n\ntherefore were entitled to the preliminary injunction they requested. The Court\n\nreached that conclusion even though Plaintiffs had not met the requisites for a\n\npreliminary injunction and thus were not entitled to such relief. The deprivation of\n\nthe right to vote that VBM and provisional voters had suffered could not be\n\nundone, Democratic Exec. Comm., 2018 WL 5986766, at 8, even by the District\n\nCourt.\n\n Part III describes why, even though the District Court found that Plaintiffs\n\nhad made the required showing for a preliminary injunction, it could not order the\n\nSecretary to do what Plaintiffs had requested.\n\n Part IV discusses the injunctive relief the Court gave instead, to the VBM\n\nvoters who were “belatedly notified.” I explain that the District Court granted\n\nrelief neither party asked for, and I show how the District Court misread the\n\nElection Code and violated the Constitution along the way. Part V concludes.\n\n I.\n\n A.\n\n\n\n\n 47\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 48 of 83\n\n\n Plaintiffs’ complaint contained two counts, each seeking relief under 42\n\nU.S.C. § 1983 for violations of the Equal Protection Clause. The counts\n\nincorporated the same factual allegations: Signature matching is “entirely\n\nstandardless, inconsistent, and unreliable,” because it is “done without any\n\nconsistent standard or relevant expertise.” Moreover, since “[h]andwriting can\n\nchange . . . for a variety of reasons,” including “physical[,] . . . mechanical . . . and\n\npsychological factors,” “the signature requirement” is “particularly problematic.”\n\nDeciding whether the signature on the voter’s ballot matches the signature on the\n\nvoter’s registration entry is therefore “arbitrary,” as if the decision were made by\n\ntossing a coin.\n\n Count I, styled “First Amendment and Equal Protection,” asserted that\n\nrejecting VBM and provisional ballots based on a signature mismatch arbitrarily\n\ndisenfranchises registered voters, and therefore\n\n is plainly violative of the Equal Protection Clause. “Having once\n granted the right to vote on equal terms, the State may not, by later\n arbitrary and disparate treatment, value one person’s vote over that of\n another.” Bush v. Gore, 531 U.S. 98, 104–05 (2000).[17]\n\n\n\n\n 17\n Count I mentions the First Amendment only in its style, never in its allegations. And\nits final paragraph asserts only an equal protection claim: “Based on the foregoing, Defendant,\nacting under color of state law, has deprived and will continue to deprive Plaintiffs and the voters\nthey represent of equal protection under the law secured to them by the Fourteenth Amendment\nto the United States Constitution and protected by 42 U.S.C. § 1983.”\n 48\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 49 of 83\n\n\nTo remedy the violations, Plaintiffs asked the Court to enjoin the rejection of VBM\n\nand provisional ballots and to order the ballots to be counted (along with the VBM\n\nand provisional ballots that were being counted based on matching signatures).\n\n Count II, styled “Equal Protection” and relying on the same Bush v. Gore\n\nlanguage, asserted that the signature-matching process disproportionately impacts\n\n“racial or ethnic minorities and/or young and first-time voters.” Count II contained\n\nno factual allegations indicating why this is so and did not allege any intentional\n\ndiscrimination by relevant state actors, a required element of an equal protection\n\nclaim. Washington v. Davis, 426 U.S. 229, 239, 96 S. Ct. 2040, 2047 (1976). This\n\nmay explain why the District Court never mentioned Count II in its order granting\n\na preliminary injunction. Accordingly, like the District Court, I will focus only on\n\nCount I.\n\n To sum up Count I, Plaintiffs alleged that signature matching is arbitrary.\n\nThat is, according to Plaintiffs, ballots were rejected based on a bogus signature\n\ncomparison. Plaintiffs sued to vindicate the rights of voters whose ballots were\n\nrejected, and they asked for an injunction requiring the counting of all VBM and\n\nprovisional ballots rejected due to signature mismatch.\n\n B.\n\n\n\n\n 49\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 50 of 83\n\n\n Plaintiffs accompanied their Complaint with a motion for a preliminary\n\ninjunction. The motion asked the District Court to enjoin the Secretary to direct\n\nthe county supervisors of elections to refrain from\n\n rejecting vote by mail and provisional ballots on the basis of a\n signature mismatch [and to] toll the deadline for the county\n canvassing board to submit “unofficial” results to the Department of\n State . . . , in order to ensure that all signed absentee and provisional\n ballots are counted and included in all submitted results.\n\nIn their responses to Plaintiffs’ motion, the Secretary and the RNSC presented\n\narguments based on laches and the four-factor standard for obtaining a preliminary\n\ninjunction. 18 They argued Plaintiffs’ claim was barred by laches, since Plaintiffs\n\nhad known about the signature-matching requirement for years and did not sue\n\nuntil after the polls were closed and the votes were being counted.\n\n On the merits, the Secretary and the RNSC argued that signature-matching\n\nwas reasonable under the Anderson-Burdick balancing test,19 pointing to its role in\n\n\n\n 18\n The RNSC additionally challenged Plaintiffs’ standing to sue on behalf of the voters\nwhose ballots were not counted and raised a res judicata argument based on a prior suit, brought\nby the Democratic Party in 2016, which had challenged the previous signature-matching process.\n 19\n The Supreme Court has recognized “that the right to vote in any manner and the right\nto associate for political purposes through the ballot are [not] absolute.” Burdick v. Takushi, 504\nU.S. 428, 433, 112 S. Ct. 2059, 2063 (1992) (emphasis added) (citing Munro v. Socialist\nWorkers Party, 479 U.S. 189, 193, 107 S. Ct. 533, 536 (1986)). And “[e]lection laws will\ninvariably impose some burden upon individual voters.” Id. Thus, courts “considering a\nchallenge to a state election law must” apply a balancing test and\n\n weigh “the character and magnitude of the asserted injury to the rights protected\n by the First and Fourteenth Amendments that the plaintiff seeks to vindicate”\n against “the precise interests put forward by the State as justifications for the\n\n 50\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 51 of 83\n\n\npreventing fraud and the fact that many other states require a signature match for a\n\nVBM ballot to count.20 They additionally argued that any varying standards for\n\nsignature comparisons across counties fell within the general prerogative of local\n\ngovernments to set their own election procedures. On the other elements of the\n\npreliminary injunction standard, the Secretary and the RNSC argued that Plaintiffs’\n\ndelay in bringing the suit, as well as the availability of adequate state remedies,\n\nsuggested that no federal equitable remedy was needed. They also argued that the\n\nbalance of the equities favored them, as judicial decrees changing the rules in the\n\nmiddle of an election are contrary to the public interest.\n\n In sum, what the District Court had before it was a claim that signature\n\nmatching was arbitrary, every qualified voter had a constitutional right not to be\n\ndisenfranchised because of it, and the appropriate remedy was to count every\n\nsignature-mismatched ballot with no additional information or input from the\n\nvoter. The Court did find that signature matching is arbitrary and that it violates\n\nthe Equal Protection Clause. But as I explain below, the Court then assumed that\n\nsignature matching is constitutional, so long as denied voters have a chance to\n\n\n burden imposed by its rule,” taking into consideration “the extent to which those\n interests make it necessary to burden the plaintiff’s rights.”\n\nId. at 434, 112 S. Ct. at 2063 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S. Ct.\n1564, 1570 (1983)).\n 20\n Thirty-five states other than Florida have such a signature-matching requirement. Vote\nat Home, Voting at Home Across the States, https://www.voteathome.org/wp-\ncontent/uploads/2018/11/Vote-at-Home_50-State-Report.pdf (last visited Feb. 15, 2018).\n 51\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 52 of 83\n\n\ncure. It then granted relief that was designed to give denied voters a longer period\n\nto cure. Plaintiffs, who attacked the practice of signature matching altogether,\n\nnever asked for this longer-to-cure relief.\n\n II.\n\n The District Court recognized that it could grant the preliminary injunction\n\nPlaintiffs requested\n\n only if [Plaintiffs] (1) . . . ha[d] a substantial likelihood of success on\n the merits; (2) irreparable injury will be suffered unless the injunction\n issues; (3) the threatened injury to [VBM and provisional voters]\n outweighs whatever damage the proposed injunction may cause the\n opposing party; and (4) if issued, the injunction would not be adverse\n to the public interest.\n\nDemocratic Exec. Comm., 2018 WL 5986766, at 6 (quoting Siegel v. LePore, 234\n\nF.3d 1163, 1176 (11th Cir. 2000) (en banc)). The District Court found that\n\nPlaintiffs satisfied these four factors. I address each in turn.\n\n A.\n\n The Court found that Plaintiffs had satisfied the first factor in answering the\n\nquestion it thought Plaintiffs’ equal protection claim presented: “whether Florida’s\n\nlaw that allows county election officials to reject vote-by-mail and provisional\n\nballots for mismatched signatures—with no standards, an illusory process to cure,\n\nand no process to challenge the rejection—passes constitutional muster.” Id. at 1.\n\nThe Court answered the question perfunctorily. “The answer is simple. It does\n\nnot.” Id.\n 52\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 53 of 83\n\n\n In identifying the question presented, the District Court reframed Plaintiffs’\n\nequal protection claim as follows: Florida’s signature-matching scheme is\n\nunconstitutional on its face because it is standardless, which causes ballots to be\n\naccepted and denied in an arbitrary fashion, without a meaningful opportunity to\n\ncure or challenge the rejection. Since these voters were afforded neither\n\nopportunity, Florida’s signature-matching scheme failed to pass constitutional\n\nmuster. Reframed, Plaintiffs’ claim was that if VBM and provisional voters were\n\ngiven a meaningful opportunity to cure or challenge a ballot rejection, the fact that\n\nthe signature-matching scheme had arbitrarily burdened their ballots did not\n\nmatter.\n\n The District Court answered the reframed question that Plaintiffs’ equal\n\nprotection claim presented in four steps. First, the Court explained why the Code’s\n\nsignature-matching provisions were standardless and produced arbitrary decisions\n\nin violation of the Equal Protection Clause. Second, it explained why the\n\nprocedure the Code provided for curing a rejected ballot was illusory. Third, it\n\nfound that the Code failed to provide an effective process for challenging such\n\nrejection. And last, the Court implied that it could redress with an injunctive order\n\nthe injury the signature-matching provisions caused VBM and provisional voters.\n\n 1.\n\n\n\n\n 53\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 54 of 83\n\n\n The District Court found that the Code’s signature-matching provisions, Fla.\n\nStat. §§ 101.68(1), (2)(c)(1) (VBM ballots), and §§ 101.048(2)(b), 101.68(c)\n\n(provisional ballots), were standardless and therefore offensive to the Equal\n\nProtection Clause.\n\n For a vote-by-mail ballot to be counted, the envelope of that ballot\n must include the voter’s signature. [Fla. Stat. § 101.65.] Once the\n vote-by-mail ballots are received, county canvassing boards review\n those ballots to verify the signature requirement has been met. Id. §\n 101.68(c). In addition to confirming the envelope is signed, the\n county canvassing boards confirm the signature on the envelope\n matches the signature on file for a voter. These county canvassing\n boards are staffed by laypersons that are not required to undergo\n formal handwriting-analysis education or training. Moreover,\n Florida has no formalized statewide procedure for canvassing boards\n to evaluate whether the signature on a vote-by-mail ballot matches the\n signature on file with the elections office.\n\nDemocratic Exec. Comm., 2018 WL 5986766, at 2 (emphases added) (footnote\n\nomitted). In addition to these shortcomings, “counties have discretion to apply\n\ntheir own standards and procedures. . . . The only way such a scheme can be\n\nreasonable is if there are mechanisms in place to protect against arbitrary and\n\nunreasonable decisions by canvassing boards to reject ballots based on signature\n\nmismatches.” Id. at 7 (emphasis added).\n\n The same was true for the provisional ballots, which were cast by the voter\n\nin person. The ballot could not be counted if the signatures did not match:\n\n Provisional ballots are placed in a secrecy envelope and sealed. The\n person casting a provisional ballot has until 5 p.m. on the second day\n following an election to present written evidence supporting his or her\n 54\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 55 of 83\n\n\n eligibility to vote. . . . A provisional ballot shall be cast unless the\n canvassing board finds by a preponderance of the evidence the person\n was not entitled to vote. After making the initial eligibility\n determination, the county canvassing board must further compare the\n signature on the provisional ballot voter’s certificate with the\n signature on the voter’s registration. If the signatures match, the vote\n is counted.\n\nId. at 3 (citations omitted). In sum, the District Court found that the Code’s\n\nstandardless signature-matching scheme arbitrarily deprived VBM and provisional\n\nvoters of the right to vote in the 2018 general election in violation of the Equal\n\nProtection Clause. Id. at 8.\n\n 2.\n\n Next, the District Court analyzed the Code’s provision for curing a\n\nsignature-rejected ballot in Fla. Stat. §§ 101.68(4)(a)–(b). It found that the “cure\n\nperiod” it provided “was intended to solve the inherent problems in signature\n\nmatching” but did not. Democratic Exec. Comm., 2018 WL 5986766, at 7. In the\n\nCourt’s mind, “the opportunity to cure ha[d] proven illusory. Vote-by-mail voters,\n\nin this election, were not notified of a signature mismatch problem until it was too\n\nlate to cure.” Id. As for the provisional voters, the Code provided “no opportunity\n\nto cure under the law. Without this Court’s intervention, these potential voters\n\n\n\n\n 55\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 56 of 83\n\n\nhave no remedy. Rather, they are simply out of luck and deprived of the right to\n\nvote,” in violation of the Equal Protection Clause. Id. 21\n\n 3.\n\n The District Court found nothing in the Code that gave VBM and\n\nprovisional voters the right to challenge a signature mismatch, whether\n\nadministratively or in court. “Florida law provides no opportunity for [VBM]\n\nvoters to challenge the determination of the canvassing board that their signatures\n\ndo not match, and their votes do not count.” Id. at 2.22 And “[t]here is no\n\nmechanism for a [provisional] voter to challenge the canvassing board’s\n\ndetermination that the voter was or was not eligible to vote.” Democratic Exec.\n\nComm., 2018 WL 5986766, at 3. 23\n\n\n\n 21\n As it turned out, the Court did nothing for voters who cast provisional ballots; the\npreliminary injunction it entered did not apply to them by its terms. But the Court essentially\nintervened on behalf of VBM voters, though it limited its intervention to a subset of VBM voters,\nto those who were “belatedly notified [that] they ha[d] submitted a mismatched-signature ballot.”\nId. at 9.\n 22\n This statement is correct in part. Once a signature mismatch determination is made\n(and, for VBM ballots, the cure period is over), there is no administrative remedy, and normal\nstatutory processes will not revive any ballots so rejected. But judicial review of signature-\nmismatch determinations for VBM ballots is available in the Florida Circuit Court in any\ncircumstance where the number of challenged votes might change the outcome of the election,\nalbeit on a limited record and with a deferential standard of review. Fla. Stat. §§ 102.168(1), (3),\n(8). Rejection of valid provisional ballots may also be challenged in the Florida Circuit Court,\nand the evidentiary and standard-of-review limitations of subsection (8) do not apply. See id. §§\n102.168(3)(c), (8) (providing for a cause of action based on “rejection of a number of legal votes\nsufficient to change . . . the result,” with limitations that apply only to VBM-ballot signature-\nmismatch challenges).\n 23\n At some point in its analysis of whether the Code’s signature-matching provisions\nviolated the Equal Protection Clause, the District Court apparently concluded that it did not\n\n\n 56\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 57 of 83\n\n\n 4.\n\n Once it recognized that the Code’s standardless signature-matching\n\nprovisions operated to deprive VBM and provisional voters of the right to vote, the\n\nDistrict Court had to decide whether it could redress the deprivation with a\n\npreliminary injunction. If it could not, Plaintiffs could not satisfy the first factor\n\nfor obtaining a preliminary injunction, a substantial likelihood of success on the\n\nmerits.\n\n Plaintiffs’ proposal was an order requiring the Secretary to direct the county\n\nsupervisors of elections to accept the VBM and provisional ballots that had been,\n\nor might be, rejected due to signature mismatch and to toll the deadline for the\n\ncounty canvassing boards’ submission of the unofficial election results to the\n\nDepartment of State until all these rejected ballots had been counted. If the Court\n\n\n\n\nmatter whether the Code provided VBM and provisional voters with effective procedures for\ncuring or challenging the rejection of their ballots. The Court did so for two reasons.\n First, in framing their equal protection claim, Plaintiffs did not challenge the\nconstitutionality of the Code’s procedures for curing or challenging the rejection of VBM and\nprovisional ballots. From their point of view, the cure provisions were adequate. Rather, the\ninjury for which Plaintiffs sought injunctive relief was the arbitrary rejection of VBM and\nprovisional ballots, and thus the deprivation of the voters’ right to vote, in the application of the\nstandardless signature-matching provisions. “[T]he asserted injury,” as the Court was quick to\nrecognize, was “the deprivation of the right to vote based on a standardless determination made\nby laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the\nsignature on file with the supervisor of elections.” Id. at 7. This was the injury Plaintiffs\nwanted the Court to redress.\n Second, since the signature-matching provisions were unconstitutional, the VBM and\nprovisional voters didn’t need a procedure for curing or challenging the rejection of their ballots.\nAn injunction requiring that their ballots be counted would provide them with all the relief they\nneeded.\n 57\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 58 of 83\n\n\ncould not issue such an order, Plaintiffs could not show likelihood of success on\n\nthe merits; nor could they establish the second, third, and fourth factors, since\n\nthose factors depend on the issuance of an injunction redressing the constitutional\n\nviolation the Court found.\n\n The Court declined to issue the proposed injunction. It could not ameliorate\n\nthe deprivation of the right to vote, because, as the Court concluded, that\n\ndeprivation “cannot be undone.” See id. at 8. But instead of dismissing\n\nPlaintiffs’ constitutional claim, the Court moved to the second, third, and fourth\n\nfactors, to determine whether they had been established. In doing so, it implied\n\nthat Plaintiffs satisfied the first factor, the likelihood of success on the merits. 24\n\n B.\n\n The District Court had no difficulty concluding that Plaintiffs had\n\nestablished the second factor, irreparable injury. “Potentially thousands of voters\n\nhave been deprived of the right to cast a legal vote—and have that vote counted—\n\nby an untrained canvassing board member based on an arbitrary determination that\n\ntheir respective signatures did not match.” Id. at 8. This deprivation, according\n\n\n\n\n 24\n As I explain in Part III, the District Court was correct not to grant this relief.\n\n\n 58\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 59 of 83\n\n\nto the Court, would be irreparable if the injunction Plaintiffs proposed did not\n\nissue. 25\n\n C.\n\n The District Court had no difficulty concluding that Plaintiffs had\n\nestablished the third factor as well. The threatened injury to the VBM and\n\nprovisional voters outweighed whatever damage the proposed injunction caused\n\nthe Secretary. As the Court put it, “The burden on the right to vote, in this case,\n\noutweighs the state’s reasons for the practice. Thus, . . . this scheme\n\nunconstitutionally burdens the fundamental right of Florida citizens to vote and\n\nhave their votes counted.” Id. at 7. 26\n\n D.\n\n The District Court found the fourth factor was satisfied because the\n\ninjunction Plaintiffs sought was\n\n in the public interest. The right of voters to cast their ballots and have\n them counted is guaranteed in the Constitution. Once again, Florida’s\n statutory scheme threatens that right by rejecting votes based on\n signature mismatch without an opportunity to challenge that\n determination.\n\nId. at 9 (citation omitted).\n\n\n 25\n Of course, the District Court knew it wasn’t going to grant the injunction Plaintiffs\nasked for. Instead, the District Court was going to grant the injunction that would remedy its\nreframed claim. This discussion of the second factor was just window dressing.\n 26\n The scheme may burden the citizens’ right to vote, but the District Court—by refusing\nto grant the injunction Plaintiffs asked for—did nothing to lift the burden and instead maintained\nthe status quo. This discussion was more window dressing.\n 59\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 60 of 83\n\n\n * \n\n The District Court spent a lot of time analyzing the four factors. But at\n\nbottom, it was all window dressing—pretext to issue an injunction unmoored from\n\nPlaintiffs’ complained-of injury. This analysis had nothing whatsoever to do with\n\nthe injunction the Court finally issued—to give VBM voters who were “belatedly\n\nnotified” that their ballots were rejected a chance to cure the rejection.\n\n III.\n\n Finding that Plaintiffs had satisfied the requirements for obtaining a\n\npreliminary injunction, the District Court “granted” their motion for that relief. Id.\n\nat 9. But the word “granted” was empty. The Court did nothing to vindicate the\n\nright to vote for the VBM and provisional voters whose ballots had allegedly been\n\narbitrarily rejected. “Approximately 5,000” VBM and provisional voters had been\n\ndisenfranchised in violation of the Equal Protection Clause by the operation of the\n\nCode’s standardless signature-matching provisions, but they received no relief.\n\nThe Court gave them no relief because the disenfranchisement could not be\n\n“undone.” Id. at 8.\n\n The right of suffrage is “a fundamental political right,” Yick Wo v. Hopkins,\n\n118 U.S. 356, 370, 6 S. Ct. 1064, 1071 (1886), protected by the Equal Protection\n\nClause of the Fourteenth Amendment. Bush, 531 U.S. at 104–05, 121 S. Ct. at\n\n529–30. “[T]he right of suffrage can be denied by a debasement or dilution of the\n\n\n 60\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 61 of 83\n\n\nweight of a citizen’s vote just as effectively as by wholly prohibiting the free\n\nexercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362,\n\n1378 (1964); accord Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995) (per\n\ncuriam). “One source of [the right’s] fundamental nature lies in the equal weight\n\naccorded to each vote and the equal dignity owed to each voter.” Bush, 531 U.S. at\n\n104, 121 S. Ct. at 529.\n\n If, as Plaintiffs alleged, accepting or rejecting a VBM ballot is arbitrary due\n\nto the lack of a uniform signature-matching standard, then it is nearly certain that\n\nthe ballots of some unregistered voters were improperly accepted and counted, and\n\nthe ballots of some registered voters were improperly rejected and not counted.\n\n With these two issues in mind, if Plaintiffs’ allegations are true and the\n\nsignature-matching decision is arbitrary, the Code would violate the Constitution in\n\ntwo ways. First, arbitrarily accepting the ballots of unregistered voters, because\n\nthe signatures seemed to match, and counting their votes would dilute the votes of\n\nregistered voters. And since this constitutes “arbitrary and disparate treatment,\n\nvalu[ing] one person’s vote over that of another,” this vote dilution would violate\n\nthe Equal Protection Clause. Id. at 104–05, 121 S. Ct. at. 530. Second, arbitrarily\n\nrejecting the ballots of registered voters, because the signatures seemed not to\n\n\n\n\n 61\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 62 of 83\n\n\nmatch, would deprive those voters of the right to vote, in violation of the Equal\n\nProtection Clause. 27\n\n But even if Plaintiffs were right—and the signature-matching decisions were\n\nno better than flipping a coin—the District Court could not grant Plaintiffs’\n\nrequested relief for two reasons.\n\n First, Plaintiffs’ requested relief would have changed the rules that dictate\n\nwhether a ballot is valid, and it would have done so in the middle of the vote count.\n\nOur precedent prohibits this sort of midstream change. See Roe, 43 F.3d at 581.\n\nSuch changes are fundamentally unfair, since they inevitably dilute the votes of\n\neveryone who complied with the pre-rule-change requirements. These are not the\n\nrules under which the campaigns and election were conducted, so imposing them at\n\nthis stage violates fundamental fairness.\n\n The obvious constitutional remedy—the remedy that would cure any\n\nproblems flowing from the arbitrary signature-matching decisions—would be to\n\nknock out all VBM ballots, except the rejected ballots that had been cured (since\n\nthose voters had proven their identity with adequate identification). But the\n\n\n\n\n 27\n Similarly, some provisional voters found eligible to vote in the precinct where they\nvoted were arbitrarily deprived of the right to vote because the signatures seemed not to match.\nSee Fla. Stat. § 101.048(2)(b)(1).\n\n\n 62\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 63 of 83\n\n\nobvious remedy was out of the question; it would render the outcomes of the 2018\n\ngeneral election politically, if not constitutionally, unacceptable.28\n\n Second, Plaintiffs’ requested relief was inconsistent with the nature of their\n\nclaim, which is a facial challenge. Plaintiffs’ claim is a facial challenge because,\n\naccepting their theory, the Code cannot be applied in a constitutional way—the\n\narbitrary signature-matching decision will always be a constitutional violation.\n\nIndeed, the Code was applied exactly as written in this case, yet Plaintiffs still\n\nallege that the signature-matching decision is unconstitutional. Nor is the Code\n\napplied constitutionally when the supervisor of elections gets the signature-\n\nmatching decision right. Under Plaintiffs’ theory, the decision itself is still\n\narbitrary because it is made without a standard. Any correct decisions are still\n\nrandom, and the whole ballot pool is tainted by the arbitrary filter.\n\n If, as the District Court concluded, the signature-matching process is\n\narbitrary—and thus unconstitutional—only one remedy would cure the harm:\n\npreventing the Secretary from enforcing the entire VBM and provisional voting\n\nschemes. 29 See United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000)\n\n(“The remedy if the facial challenge is successful is the striking down of the\n\n\n\n 28\n Because the District Court could not remedy Plaintiffs alleged injury, it should have\nfound that Plaintiffs were unable to succeed on the merits on their claim.\n 29\n The Court was right not to grant this remedy, but it should have concluded that,\nbecause the only remedy for Plaintiffs’ alleged injury was unworkable, Plaintiffs were unlikely\nto succeed on the merits on their claim. The Court then should have stopped there.\n 63\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 64 of 83\n\n\nregulation . . . .” (citing Stromberg v. California, 283 U.S. 359, 369–70, 51 S. Ct.\n\n532, 536 (1931))).\n\n IV.\n\n Instead of dismissing Plaintiffs’ claim because it couldn’t grant the relief\n\nthey sought, the District Court pivoted and held this: “Florida’s statutory scheme as\n\nit relates to curing mismatched-signature ballots has been applied\n\nunconstitutionally.” 30 Democratic Exec. Comm., 2018 WL 5986766, at 9. The\n\nCourt remedied the manufactured constitutional error by ordering the Secretary to\n\nallow voters who were “belatedly notified they ha[d] submitted a mismatched-\n\nsignature ballot to cure their ballots by November 17, 2018, at 5:00 p.m.” Id.\n\n(emphasis added).31 In addition to granting relief unrelated to Plaintiffs’ claim—\n\nand different from the relief Plaintiffs actually asked for—the District Court also\n\nmisread the Election Code.\n\n\n\n 30\n The relevant provisions are Fla. Stat. §§ 101.68(1), 2(a), 2(c)(1), and (4). As the\nensuing discussion in the text indicates, the District Court overlooked § 101.68(1) and its\nrelationship to § 101.68(4)(a) and focused instead on §§ 101.68(2)(a) and (2)(c)(1). The\ninjunctive order did not expressly identify the provisions the supervisors of elections\nunconstitutionally applied. The order is silent as to the constitutional right(s) the supervisors of\nelections or the canvassing boards violated in applying “Florida’s statutory scheme as it relates to\ncuring mismatched-signature ballots.”\n 31\n Despite the District Court’s statements about the injury to provisional-ballot voters, its\norder does not apply to provisional ballots at all: only “voters who have been belatedly notified”\ncan avail themselves of the relief. Id. at 9. Provisional ballot voters whose ballots were\nrejected were not “belatedly notified” since there was no requirement to notify them at all. Even\nif they had been notified that their ballots were rejected, such notice would not be “belated” since\nthere was no opportunity to cure provisional ballots regardless.\n\n 64\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 65 of 83\n\n\n I divide this Part into three sections. First, I explain how the Code operates.\n\nSecond, I show how the District Court misread and misapplied the Code. Third, I\n\nhighlight how the District Court abused its discretion and violated the Constitution\n\nin the process.\n\n A.\n\n To show what the District Court misunderstood, let’s start with the proper\n\nunderstanding of how these VBM provisions operate. A VBM ballot, once filled\n\nout, is placed within a mailing envelope. The voter then signs the voter’s\n\ncertificate on the back of the envelope and sends the envelope to the county\n\nsupervisor of elections, who must receive it by 7 p.m. on election day. Fla. Stat. §§\n\n101.65, 101.67(2). Instructions, provided with every ballot, warn the voter that if\n\nhis signature on the voter’s certificate does not match the signature on the voter’s\n\nregistration entry, the ballot “will be considered illegal and not be counted.” Id. §\n\n101.65.\n\n Immediately after the county supervisor of elections receives the ballot, the\n\nsupervisor must compare the signature on the voter’s certificate with the signature\n\non the voter’s registration entry. 32 On finding that a voter’s certificate is missing a\n\n\n\n 32\n The statute reads, in relevant part:\n\n The supervisor of the county where the absent elector resides shall receive the\n voted ballot, at which time the supervisor shall compare the signature of the\n\n\n 65\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 66 of 83\n\n\nsignature, or that the signature on the certificate does not match the one in the\n\nregistration entry, the supervisor of elections must immediately notify the voter, id.\n\n§ 101.68(4)(a), and allow him to cure the defect.33 The voter will have until 5 p.m.\n\nthe day before the election to present the supervisor of elections a signed affidavit\n\nthat includes a copy of an appropriate form of identification and a sworn statement\n\nverifying that the ballot is his. Id. §§ 101.68(4)(a)–(b). This submission can be\n\nmade via mail, fax, or email. Id. §§ 101.68(4)(c)(4)–(5).\n\n The ballot, and any cure affidavit received, are eventually canvassed. The\n\ncanvassing board 34 “must, if the supervisor has not already done so, compare the\n\nsignature” on the voter’s certificate or cure affidavit with the one in the registration\n\n\n\n\n elector on the voter’s certificate with the signature of the elector in the registration\n books or the precinct register . . . .\n\nId. § 101.68(1) (emphasis added). The use of “shall compare” and “at which time” indicate that\nthis duty is mandatory and must be performed when the ballot is received.\n 33\n The majority mistakenly concludes that election officials may sit on a VBM ballot and\ndo nothing with it until it’s canvassed by the canvassing board. To draw this conclusion, the\nmajority assumes that the canvassing board compares the signatures all on its own. See Maj. Op.\nat 14–15 (“And even more problematically, the law did not require canvassing boards to even\nbegin the canvassing of vote-by-mail ballots and check for signature match before noon on the\nday after the election[, even though signature cures must be submitted by 5 p.m. the day before\nthe election].”); id. at 22 (noting that submitting a VBM ballot well before the deadline “still\nwould not guarantee that [a voter] would be notified of any signature mismatch until it was too\nlate to do anything to remedy the problem”). Doing so, the majority overlooks the parts of the\nCode that require the supervisor (1) to immediately compare the signatures after receiving a\nballot and (2) to immediately notify a voter that his ballot has been rejected based on a problem\nwith the signatures.\n 34\n By statute, each county canvassing board consists of the supervisor of elections, a\ncounty court judge, and the chair of the board of county commissioners. Id. § 102.141(1).\n\n\n 66\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 67 of 83\n\n\nbooks “to determine the legality of that vote-by-mail ballot.” 35 Id. §\n\n101.68(2)(c)(1). Canvassing need not occur immediately on receiving a ballot or\n\ncure affidavit: it can begin any time from 15 days before the election to noon of the\n\nday after. Id. § 101.68(2)(a). If a ballot is rejected for a signature mismatch and is\n\nnot cured under the procedure specified in § 101.68(4)(b), it is marked “rejected as\n\nillegal” and is not tabulated, although the ballot itself is preserved. Id. §§\n\n101.68(2)(c)(1), (5).\n\n B.\n\n The District Court reached its decision that the Code provisions relating to\n\n“curing” signature-rejected ballots were applied unconstitutionally because it failed\n\nto comprehend how the statutes operated to notify VBM voters that their ballots\n\nhad been rejected, id. §§ 101.62(1)(a)–(b), and to inform voters of their right to\n\ncure the rejection, id. § 101.68(4)(b).\n\n With all of that clearly laid out in the Code, here is how the District Court\n\ndescribed the statutory process:\n\n The opportunity to cure is the last chance a vote-by-mail voter has to\n save their vote from being rejected and not counted. Florida law\n provides no opportunity for voters to challenge the determination of\n the canvassing board that their signatures do not match, and their\n votes do not count. . . . Even more striking is the fact that under\n Florida law, canvassing boards may begin canvassing of vote-by-mail\n\n 35\n Presumably, this would happen only if the canvassing board received a VBM ballot\nafter canvassing had already begun. Otherwise, the supervisor would have compared the\nsignatures immediately after receiving the ballot, as he or she is required to do. Id. § 101.68(1).\n 67\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 68 of 83\n\n\n ballots at 7 a.m. on the 15th day before the election, but no later than\n noon on the day following the election. Fla. Stat. § 101.68(2)(a).\n Thus, a vote-by-mail voter could mail their ballot in weeks early, but\n the canvassing board could also wait, canvass the ballot the day after\n the election, determine there is a mismatched signature, and toss the\n vote. The voter therefore gets no chance to cure, since curing must be\n done by 5 p.m. the day before the election.\n\nDemocratic Exec. Comm., 2018 WL 5986766, at 2.\n\n The District Court reached the conclusion that the signature-matching\n\nexercise was carried out by the canvassing boards entirely on its own. 36 Nothing in\n\nthe allegations of Plaintiffs’ Complaint or the briefing on Plaintiffs’ motion for a\n\npreliminary injunction warranted this conclusion. Nothing in the Complaint or the\n\nparties’ submissions indicated that VBM voters were “belatedly notified” that the\n\nsignature on their ballots did not match the signature in their registration entry.\n\nThe county supervisors of elections are presumed to have processed VBM ballots\n\nand voters’ cure affidavits in keeping with both the letter and the spirit of the law. 37\n\nNothing in the complaint or the parties’ submissions rebutted that presumption.\n\n A VBM voter waiting until the eleventh hour to submit his ballot ran the risk\n\nthat his ballot might be rejected. VBM voters were on notice that a chain of events\n\nhad to happen before they successfully cured a rejected ballot: (1) they had to\n\n\n\n\n 36\n The majority adopts and endorses this erroneous reading. See Maj. Op. at 14–15, 22.\n 37\n “Ordinarily, we presume that public officials have properly discharged their official\nduties.” Banks v. Dretke, 540 U.S. 668, 696, 124 S. Ct. 1256, 1275 (2004) (quoting Bracy v.\nGramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 1799 (1997)).\n 68\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 69 of 83\n\n\nreceive a rejection notice in the mail, (2) they had to prepare a cure affidavit, and\n\n(3) they had to present the affidavit to the supervisor of elections by 5 p.m. the day\n\nbefore the election. Obviously, these things would take some time, so a VBM\n\nvoter knew that it was risky to submit a VBM ballot near the deadline. A VBM\n\nvoter thus had no one to blame but himself if the time ran out for curing a rejected\n\nballot. See Rosario v. Rockefeller, 410 U.S. 752, 757–58, 93 S. Ct. 1245, 1249–50\n\n(1973) (noting that petitioners could have met the 30-day deadline for enrolling in\n\npolitical party, “but chose not to. Hence, if their plight can be characterized as\n\ndisenfranchisement at all, it was not caused by [the deadline], but by their own\n\nfailure to take timely steps to effect their enrollment”).\n\n * * \n\n In one breath, the District Court held that the signature-matching provision\n\nis arbitrary and thus violated the Equal Protection Clause. See Democratic Exec.\n\nComm., 2018 WL 5986766, at 8. But in the next breath, the Court found that the\n\nsignature-matching provision did not in fact violate the Equal Protection Clause.\n\nIndeed, implicit in its granting relief to the “belatedly notified” VBM voters is the\n\nconclusion that implementing the signature-matching provisions does not violate\n\nthe Equal Protection Clause. Thus, it is constitutionally permissible for the\n\nsupervisors of elections or the canvassing boards to reject a VBM ballot on a\n\nfinding that the signatures on the ballot or cure affidavit and the voter’s registration\n\n\n 69\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 70 of 83\n\n\nentry did not match. 38 What was constitutionally impermissible was to belatedly\n\nnotify a VBM voter of the rejection.\n\n C.\n\n The District Court abused its discretion in ordering that the county\n\nsupervisors of elections allow belatedly notified voters time to cure their ballots.\n\n“A district court abuses its discretion if it . . . applies the law in an unreasonable or\n\nincorrect manner . . . .” Glock v. Glock, Inc., 797 F.3d 1002, 1006 (11th Cir. 2015)\n\n(quoting FTC v. AbbVie Prods. LLC, 713 F.3d 54, 61 (11th Cir. 2013)). The abuse\n\noccurred here because the District Court based its injunctive order on an incorrect\n\nreading of the Election Code, thus applying an incorrect legal standard. 39 And this\n\nCourt, in wrongly assuming that the District Court had a solid legal foundation for\n\nits injunctive order, was wrong to deny the RNSC’s motion to stay the order.\n\n The District Court not only relied on a mistaken reading of the Code, it also\n\ncommitted several constitutional violations in reaching its ultimate decision.\n\n\n\n\n 38\n In fact, the Court endorsed the further use of signature-matching directly within its\norder: if any voter seeking to avail himself of the remedy submits a cure affidavit with Tier 2\nidentification, he is just as subject to the chance of rejection for signature mismatch as a voter in\nthe first instance. If one coin flip is unconstitutional, surely adding another doesn’t solve the\nproblem.\n 39\n As I explained in footnote 16, supra, when analyzing the motion to stay, we must\nevaluate the likelihood that Defendants will succeed on the merits of their appeal. In this appeal,\nthe issue will be whether the District Court abused its discretion by granting the preliminary\ninjunction. Thus, the abuse of discretion is relevant when deciding whether Defendants are\nlikely to prevail on the merits of their appeal.\n 70\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 71 of 83\n\n\n First, in issuing the injunctive order against the Secretary sua sponte without\n\ngiving them notice and an opportunity to be heard on whether the order should\n\nissue, the Court denied them due process of law.\n\n Second, in issuing its injunctive order after the polls had closed, the Court\n\nchanged the rules under which the general election had been conducted, effectively\n\nrewriting the VBM provisions of the Code. This operated to virtually\n\ndisenfranchise some VBM voters—those who would have cured but for the\n\ndeadline and were now unable to submit a cure by the new deadline—and, at the\n\nsame time, to dilute votes cast at the polls, in violation of the Due Process and\n\nEqual Protection Clauses.\n\n Third, in failing to define “belatedly notified,” the Court created its own\n\nstandardless determination for identifying those eligible to vote, in violation of the\n\nEqual Protection Clause.\n\n Fourth, in rewriting the VBM provisions of the Code to eliminate its\n\npurportedly unconstitutional application, the Court dishonored Florida’s separation\n\nof powers doctrine, which prevents courts from rewriting statutes, and thereby\n\nviolated the doctrine of federalism, which precludes federal courts from taking\n\naction that would breach a state’s separation of powers.\n\n I expand on these constitutional errors in turn.\n\n 1.\n\n\n 71\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 72 of 83\n\n\n A reader of the District Court’s injunctive order would assume that Plaintiffs\n\nhad claimed that in belatedly notifying VBM voters that their ballots had been\n\nrejected, the supervisors of elections had infringed a right the voters enjoyed under\n\nthe Fourteenth Amendment, a right they declined to identify. The assumption\n\nwould be false because Plaintiffs made no such claim. The Court invented the\n\nclaim by reframing what Plaintiffs actually alleged, and it did so without informing\n\nthe parties of what was lying in store. Plaintiffs were only attacking the Code’s\n\nsignature-matching scheme; they had no quarrel with the Code’s provisions for\n\nnotifying VBM voters that their ballots had been rejected and explaining how a\n\nrejection could be cured.\n\n Saddling a defendant with a judgment on a claim the plaintiff did not assert,\n\na claim based on a legal theory the plaintiff would have rejected, 40 and doing so\n\nwithout notice to the defendant and affording it an opportunity to be heard violates\n\nthe Due Process Clause of the Fourteenth Amendment. That’s what happened\n\nhere. The Court entered its injunctive order in derogation of the Secretary’s and\n\nthe RNSC’s right to due process.\n\n 2.\n\n\n\n\n 40\n To accept the Court’s position that the signature-matching provisions were valid,\nPlaintiffs would have to abandon their position that the provisions violated the Equal Protection\nClause.\n\n\n 72\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 73 of 83\n\n\n The District Court changed the rules of the election after the polls had\n\nclosed, an impermissible remedy under our decision in Roe v. Alabama. 43 F.3d at\n\n581.41 Changing the rules of an election after the voting is over and the ballots are\n\nbeing counted is an impermissible remedy because it violates rights guaranteed by\n\nthe Fourteenth Amendment in three ways. First, the new rules enfranchise those\n\nwho failed to comply with the rules in existence before the voting began and\n\ntherefore could not legally vote. Second, counting the votes of the newly\n\nenfranchised dilutes the votes submitted in compliance with the existing rules.\n\nThird, changing the rules virtually disenfranchises some who did not vote. Time\n\nconstraints, for example, may have rendered these non-voters unable to comply\n\nwith the existing rules, but they would have voted or cured had they known of the\n\nnew rules.\n\n The first consequence of the District Court’s order, counting votes that\n\nwould not have been cast prior to the rule changes, would amount to “stuff[ing] the\n\nballot box,” id., and would jeopardize the integrity of the election. The second\n\nconsequence, diluting compliant votes under the old rules, would disregard the\n\nCourt’s “obligation to avoid arbitrary and disparate treatment of the members of\n\n\n 41\n Roe involved an Alabama state law that appeared to require absentee ballots to be\neither notarized or signed by two witnesses. It was the past practice in Alabama not to count\nballots that did not meet this requirement. Id. After a closely contested election, a state circuit\ncourt ordered the Secretary of State to count non-notarized and insufficiently witnessed ballots.\nThe District Court issued a conflicting injunction, requiring the Secretary not to comply with the\nstate court order, and we affirmed the order in relevant part. Id. at 583.\n 73\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 74 of 83\n\n\n[the] electorate” and would violate the Equal Protection Clause. Bush, 531 U.S. at\n\n105, 121 S. Ct. at 530. The third consequence, virtually disenfranchising those\n\nwho would have voted (or cured) but for the inconvenience imposed by the\n\npreexisting rules, would deprive those would-be voters of the equal protection of\n\nthe laws. Roe, 43 F.3d at 581.\n\n 3.\n\n Now, onto the problems with belated notice. The District Court’s injunctive\n\norder fails to define “belatedly notified.” What constitutes belated notice, and how\n\nwere the supervisors of elections supposed to determine who was belatedly\n\nnotified?\n\n Start with the substantive standard of belated notice. This must mean “later\n\nthan would in fact allow the voter to cure,” rather than “later than the supervisor of\n\nelections was allowed to wait by statute”: the voter must have received notice at an\n\nhour actually too late to cure, or with an unreasonably low amount of turn-around\n\ntime available, if the order is to include him. Interpreting the order otherwise, to\n\nrule that only persons who were notified later than required by the statute received\n\nbelated notice, would not remedy any constitutional problem with the statute. So\n\nthe most natural reading of the order is that belated notice is a fact-intensive\n\ninquiry turning on the voter’s individual circumstances. When was the voter\n\nnotified? What was he told about the cure procedure—was he sent a cure affidavit,\n\n\n 74\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 75 of 83\n\n\ndirected to its location on the county elections website, simply informed that it was\n\nrequired, or none of the above? What sort of means and capacity—a computer or\n\nfax machine, a few minutes of free time—did he have available to respond quickly,\n\nif necessary? The determination would be easy with respect to some voters—those\n\nwhose ballots originally came in after the 5 p.m. cure affidavit deadline—but\n\nharder for others.\n\n The supervisors of elections were not required to retain any of the\n\ninformation that would help resolve the hard cases of belated notice. Much of it\n\nwould be inherently outside a supervisor’s purview—e.g., when the voter checked\n\nhis mail—so the supervisor would have no idea which voters were actually\n\nbelatedly notified. Likely, many of these possibly belatedly notified voters sent in\n\n(late) cure affidavits. So, supervisors must, for each late cure affidavit already\n\nreceived, determine whether the affiant was actually belatedly notified, in addition\n\nto making this determination for every cure affiant who submitted his affidavit\n\nbetween the issuance of the injunction and its deadline two days later. The\n\ninjunctive order gave supervisors no guidance or standards to apply when making\n\nthese determinations.\n\n This relief is impermissible under Bush v. Gore, in which the Supreme Court\n\nreversed the Florida Supreme Court’s order requiring a hand recount that lacked\n\nuniform standards across counties for determining the intent of the voter. 531 U.S.\n\n\n 75\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 76 of 83\n\n\nat 111, 121 S. Ct. at 533. The Court explained that “[w]hen a court orders a\n\nstatewide remedy, there must be at least some assurance that the rudimentary\n\nrequirements of equal treatment and fundamental fairness are satisfied.” Id. at 109,\n\n121 S. Ct. at 532. Here, non-uniform standards for belated notice, and how it is to\n\nbe determined, are practically inevitable. Some counties may set a cutoff date and\n\ntime to cure. Other counties may ask each voter whether he or she had enough\n\ntime. Still others may assume that the submission of every cure after the deadline\n\nwas due to belated notice rather than dilatory voter behavior and therefore count\n\nthem all. The Court’s failure to dictate a uniform standard for deciding those who\n\nwere or were not belatedly notified is destined, almost assuredly, to result in voters\n\nin identical circumstances being treated differently. Under Bush, it must not.\n\n 4.\n\n The District Court’s injunction functionally writes a new provision into\n\nFlorida’s Election Code as it relates to curing a ballot rejected for want of\n\nmatching signatures. It was not needed; the statutory provisions the Court\n\noverlooked informed VBM voters of everything they needed to know to cast a\n\nballot and have it counted. If the provisions are inadequate, it is the responsibility\n\nof the Florida legislature to refine them.\n\n The Florida Supreme Court would not usurp the legislative prerogative and\n\nrewrite a significant part of the Election Code as the District Court has done. The\n\n\n 76\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 77 of 83\n\n\nseparation of powers doctrine would preclude it from doing so. See, e.g., Fla.\n\nDep’t of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001)\n\n(“Under fundamental principles of separation of powers, courts cannot judicially\n\nalter the wording of statutes where the Legislature clearly has not done so.”);\n\nHawkins v. Ford Motor Co., 748 So. 2d 993, 1000 (Fla. 1999) (“[T]his Court may\n\nnot rewrite statutes contrary to their plain language.”).\n\n Under our Constitution, federal courts must respect the doctrine of\n\nfederalism; it requires the federal courts to respect Florida’s decision to fashion a\n\ngovernment with three coequal branches, legislative, executive, and judicial. As a\n\nsister circuit has said, “Even the narrowest notion of federalism requires us to\n\nrecognize a state’s interest in preserving the separation of powers within its own\n\ngovernment as a compelling interest.” Republican Party of Minn. v. White, 416\n\nF.3d 738, 773 (8th Cir. 2005). The court explained that a “state’s choice of how to\n\norganize its government is ‘a decision of the most fundamental sort for a sovereign\n\nentity.’” Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395,\n\n2400 (1991)).\n\n If the District Court believed the Code’s provisions relating to curing VBM\n\nballots for lack of a signature match violated the Constitution as applied, what\n\ncould it do? The power the Supremacy Clause, see U.S. Const. art. VI, cl. 2,\n\nallows federal courts to review state statutes, but federal courts are limited to\n\n\n 77\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 78 of 83\n\n\nrefusing to apply the provisions they find unconstitutional. See Frandsen, 212 F.3d\n\nat 1235 (“The remedy if the facial challenge is successful is the striking down of\n\nthe regulation . . . .” (citing Stromberg, 283 U.S. at 369–70, 51 S. Ct. at 536)); see\n\nalso Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 154 (1994)\n\n(“American courts have no general power of control over legislatures. Their\n\npower, tout simple, is to treat as null an otherwise relevant statute which they\n\nbelieve to be beyond the powers of the legislature . . . .”). That power does not\n\nextend—as the District Court clearly believed—to prescribing new rules of\n\ndecision on the state’s behalf. See Virginia v. Am. Booksellers Ass’n, 484 U.S.\n\n383, 397, 108 S. Ct. 636, 645 (1988) (“[W]e will not rewrite a state law to conform\n\nit to constitutional requirements.”). 42\n\n The District Court could impose no remedy other than an injunction\n\nprohibiting the State’s enforcement of the provisions it found offensive to the U.S.\n\nConstitution. The Court couldn’t impose that remedy, though, because it might\n\nleave out in the cold the VBM voters the Court wanted to protect—those belatedly\n\n\n\n 42\n Remarkably, courts cannot rewrite statutes even by striking down language, rather than\nby adding it. Take severability clauses—which the statutes at issue here noticeably lack. In\nWhole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised (June 27, 2016), for\nexample, the state defendant argued for a “narrowly tailored judicial remedy,” not facial\ninvalidation, by pointing to a severability clause in Texas’s abortion statute. Id. at 2318−19. But\nthe Supreme Court responded that a “severability clause is not grounds for a court to ‘devise a\njudicial remedy that entails quintessentially legislative work.’” Id. at 2319 (alterations omitted)\n(quoting Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329, 126 S. Ct. 961, 968\n(2006)).\n 78\n\n Case: 18-14758 Date Filed: 02/15/2019 Page: 79 of 83\n\n\nnotified. The Court didn’t identify the provisions “relat[ing] to curing\n\nmismatched-signature ballots” that were unconstitutionally applied. Those\n\nprovisions are intertwined with other VBM provisions, so the vindication of the\n\nrights of the voters belatedly notified might require the Court to enter an order that\n\nwould bring down the VBM scheme altogether, a result neither Plaintiffs nor the\n\nbelatedly notified voters could accept.\n\n At the end of the day, the District Court should have been restrained by\n\nfederalism: the Court should not have taken it upon itself to monitor the operation\n\nof Florida’s Election Code, fine-tuning its provisions here and there. See Curry v.\n\nBaker, 802 F.2d 1302, 1314 (11th Cir. 1986) (“Although federal courts closely\n\nscrutinize state laws whose very design infringes on the rights of voters, federal\n\ncourts will not intervene to examine the validity of individual ballots or supervise\n\nthe administrative details of a local election.”).\n\n V.\n\n This case highlights the many problems that arise when a federal court\n\noversteps its Article III authority. Here, the District Court overstepped by\n\nreframing Plaintiffs’ claim sua sponte and without notice to the parties. It also\n\noverstepped by granting relief on the reframed claim, relief that Plaintiffs never\n\nrequested. And finally, the District Court overstepped by effectively rewriting the\n\nElection Code.\n\n\n 79\n\nCase: 18-14758 Date Filed: 02/15/2019 Page: 80 of 83\n\n\n EXHIBIT 1\n\n\n\n\n 80\n\nCase: 18-14758 Date Filed: 02/15/2019 Page: 81 of 83\n\nCase: 18-14758 Date Filed: 02/15/2019 Page: 82 of 83\n\nCase: 18-14758 Date Filed: 02/15/2019 Page: 83 of 83", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368564/", "author_raw": "TJOFLAT, Circuit Judge, dissenting"}]}	TJOFLAT	MARTIN	ROSENBAUM	1	{"TJOFLAT": ", Circuit", "MARTIN": ", Circuit", "ROSENBAUM": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591311/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,591,814	UNITED STATES of America, Plaintiff-Appellee, v. Paul Dexter HARRIS, Defendant-Appellant.	United States v. Paul Dexter Harris	2019-02-19	18-12418	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Pryor, Rosenbaum, Conway", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 18-12418 Date Filed: 02/19/2019 Page: 1 of 23\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-12418\n ________________________\n\n D.C. Docket No. 1:17-cr-00025-LJA-TQL-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nPAUL DEXTER HARRIS,\n\n Defendant-Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Georgia\n _______________________\n\n (February 19, 2019)\n\nBefore WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and CONWAY, \nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n\n\n Honorable Anne C. Conway, United States District Judge for the Middle District of Florida,\nsitting by designation.\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 2 of 23\n\n\n This criminal appeal presents two questions: first, whether sufficient\n\nevidence supports Paul Harris’s conviction of extortion in violation of the Hobbs\n\nAct, 18 U.S.C. § 1951(a), (b)(2); and second, whether the district court violated\n\nHarris’s right to present a complete defense when it limited his closing argument.\n\nWhile Harris worked as a corrections officer at Autry State Prison, he discovered\n\nthat inmates were operating a phone scam in which they posed as government\n\nofficials and tricked their victims into paying fake fines in the form of prepaid\n\ndebit-card numbers. Harris confessed to investigators that he seized some of these\n\nnumbers from the inmates and took the ill-gotten funds for his personal use. Harris\n\ncast himself as “Robin Hood” as he took from the inmates, but his actions more\n\nclosely resemble those of the Sheriff of Nottingham: instead of taking extorted\n\nspoils from the rich and returning them to the poor, Harris extorted the scheming\n\ninmates to enrich himself. See generally Joseph Ritson, Robin Hood: A Collection\n\nof All the Ancient Poems, Songs, and Ballads, Now Extant, Relative to that\n\nCelebrated English Outlaw (Longman et al. 1820) (1795). A jury convicted Harris\n\nof extortion by two alternative means: “by wrongful use of actual or threatened\n\nforce, violence, or fear” and “under color of official right.” 18 U.S.C. § 1951(b)(2).\n\nAnd the district court later denied his motion for a judgment of acquittal. We now\n\naffirm.\n\n\n\n\n 2\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 3 of 23\n\n\n I. BACKGROUND\n Inmates at Autry State Prison operated a phone scam in which they would\n\nmasquerade as law-enforcement or court officials and dupe their victims into\n\npaying them for fake infractions. For example, an inmate would tell a victim that\n\nhe had missed jury duty and would be arrested if he did not pay a fine. Victims\n\npaid money to the inmates in the form of Green Dot numbers. Green Dot\n\nCorporation sells debit cards that can be reloaded by purchasing a MoneyPak at a\n\nstore’s checkout counter. Each MoneyPak has a unique 14-digit number hidden\n\nunder a scratch-off field, and this Green Dot number can then be used to load\n\nmoney onto a Green Dot debit card. So when a victim of the scam sent a Green\n\nDot number to inmates, they could use the number to load money onto their Green\n\nDot debit cards over the phone. Inmates were not allowed to have money,\n\nincluding Green Dot numbers, in the prison, so they wrote the numbers on pieces\n\nof paper and hid the papers in their cells until they could load the money. The scam\n\nsucceeded; one inmate collected over $15,000 in Green Dot numbers from his\n\nvictims.\n\n Paul Harris, a corrections officer at Autry, discovered the inmates’ scam.\n\nHarris had a reputation as “the asshole” at Autry. He worked on a special team of\n\nofficers who monitored unruly inmates and conducted surprise “shakedowns”—\n\nthat is, “a search of the cell or of the inmate.” Harris knew that he was obliged to\n\n\n\n 3\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 4 of 23\n\n\nconfiscate contraband that he found during the shakedowns. When he conducted\n\nshakedowns of the inmates in the summer of 2013, Harris began to find Green Dot\n\nnumbers. He initially flushed the numbers down a toilet, but an inmate suggested\n\nthat he should “stop throwing money away like that” and instead “load that money\n\nup.” So Harris decided, in his words, to “Robin-Hood” the inmates. Harris knew\n\nthat the inmates had obtained the numbers illegally; he told inmates that “[s]ince\n\nyou be around stealing[,] . . . I’m a [sic] steal from you.” Instead of turning the\n\nnumbers over to supervisors, Harris loaded the money onto his Green Dot cards.\n\nNo inmates were reported for possessing contraband, and they continued to operate\n\ntheir scam.\n\n After police departments across the country received numerous complaints\n\nabout the scam, agents of the Federal Bureau of Investigation traced the scam back\n\nto the prison. As part of their investigation, the agents subpoenaed the Green Dot\n\nhistories for corrections officers, and Harris’s Green Dot history raised a red flag.\n\n Harris had two Green Dot cards, the first activated in January 2013 and the\n\nsecond in June 2013. In the summer of 2013, Harris loaded 29 Green Dot numbers\n\nonto his cards, and the amount exceeded his income for the time period. His Green\n\nDot numbers had been purchased across the country, including from stores in\n\nGeorgia, Washington, Florida, Texas, North Carolina, California, Oklahoma, South\n\n\n\n\n 4\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 5 of 23\n\n\nCarolina, Nebraska, Pennsylvania, and Alaska—almost all places that Harris had\n\nnever visited.\n\n Agents James Hosty and Brian Davis went to Harris’s house unannounced\n\none morning to interview him about his suspicious Green Dot history. Harris\n\nchanged his story several times. At first, Harris denied having Green Dot cards or\n\nusing Green Dot numbers. When the agents confronted him with his Green Dot\n\nhistory, Harris then blamed his ex-girlfriend. But Harris eventually confessed that\n\nhe had taken Green Dot numbers from inmates during shakedowns and loaded the\n\nmoney onto his cards.\n\n A grand jury indicted Harris on one count of Hobbs Act extortion, 18 U.S.C.\n\n§ 1951(a), (b)(2), by means of either the wrongful use of fear or under color of\n\nofficial right. After a two-day trial, Harris’s counsel argued in closing that,\n\nalthough Harris’s conduct may have constituted theft, it did not constitute\n\nextortion. He provided the definition of common-law theft to the jury and argued\n\nthat the government charged Harris with the wrong crime. The jury could not reach\n\na verdict, so the district court declared a mistrial.\n\n Before the second trial, the government moved in limine to bar Harris from\n\narguing to the jury that he may have committed theft but did not commit extortion.\n\nThe district court granted the motion. It ruled that Harris could not argue that he\n\n“commit[ted] common-law theft or . . . make any type of indication that he should\n\n\n\n 5\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 6 of 23\n\n\nhave been charged with something different.” But the district court also ruled that\n\nHarris could argue that, even if he did something wrong, the government failed to\n\nprove that he committed extortion.\n\n At the second trial, Woodrow Tripp, an investigator for the Georgia\n\nDepartment of Corrections, testified about prison policies and the phone scam at\n\nAutry. He explained that a “primary responsibility” of corrections officers is to\n\nseize contraband from inmates and that officers may not keep contraband for their\n\npersonal use. The contraband policy in the summer of 2013 required corrections\n\nofficers to report contraband that they seized, and that report would have triggered\n\na disciplinary hearing for the offending inmate. Tripp explained that, at the\n\nhearing, “there is an administrative remedy available to an inmate who believes\n\nthat his property may have been wrongfully taken by a corrections officer.” The\n\ndiscipline for possessing contraband was administrative segregation, commonly\n\nreferred to as time in “the hole.” Tripp testified that, to his knowledge, no inmates\n\nhad been disciplined for possessing Green Dot numbers and no corrections officers\n\nhad been reported for taking inmates’ Green Dot numbers for their personal use in\n\nthe summer of 2013. On cross-examination, Tripp testified that he knew nothing\n\nabout shakedowns conducted by Harris.\n\n Michael Oliver, an inmate involved in the scam when he was at Autry in\n\n2014 and 2015, testified that the “whole prison” was involved in the scam. After\n\n\n\n 6\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 7 of 23\n\n\none shakedown, Oliver’s Green Dot numbers went missing, and someone else had\n\ntaken the funds. But he never reported the missing Green Dot numbers to prison\n\nofficials because they were contraband, and he did not want to implicate himself in\n\nthe scam. On cross-examination, Oliver testified that he was not an inmate at Autry\n\nduring the summer of 2013, nor did he know Harris.\n\n Agent Hosty testified in detail about his investigation of the phone scam at\n\nAutry. He also recounted his interview of Harris. The government then played a\n\nrecording of Harris’s interview for the jury.\n\n At the close of the government’s case, Harris moved for a judgment of\n\nacquittal. He argued that the government failed to provide sufficient evidence of\n\nhis guilt, in part because it never identified any victim of his alleged extortion. The\n\ndistrict court took the motion under advisement.\n\n During closing argument, Harris’s counsel argued that “[w]e’re not saying\n\nMr. Harris is not guilty of any crime or that he didn’t break any law. He just didn’t\n\nbreak this law.” He explained that “extortion is not stealing. Extortion is not\n\nrobbing. It has more elements.” The jury was not convinced. It found Harris guilty\n\nof extortion both by the wrongful use of fear and under color of official right.\n\n The district court then denied Harris’s motion for a judgment of acquittal.\n\nAlthough the government did not identify specific victims of his extortion, the\n\ndistrict court concluded that a reasonable jury could find that the inmates had a\n\n\n\n 7\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 8 of 23\n\n\nfearful state of mind when Harris conducted shakedowns. It also concluded that a\n\nreasonable jury could find that an understanding existed between Harris and the\n\ninmates, in which Harris would not report the inmates for possessing contraband\n\nGreen Dot numbers and the inmates would not report Harris for keeping the\n\nmoney. The district court sentenced Harris to serve 12 months and one day of\n\nimprisonment followed by two years of supervised release.\n\n II. STANDARDS OF REVIEW\n\n We review de novo the sufficiency of the evidence. United States v.\n\nGonzalez, 834 F.3d 1206, 1214 (11th Cir. 2016). We view “the evidence in the\n\nlight most favorable to the jury verdict and draw all inferences in its favor.” Id. We\n\nmust affirm the conviction “if there is substantial evidence to support [it], unless\n\nno trier of fact could have found guilt beyond a reasonable doubt.” Id. (internal\n\nquotation marks omitted) (quoting United States v. Pineiro, 389 F.3d 1359, 1367\n\n(11th Cir. 2004)). Because “[t]he district court has broad discretion over the scope\n\nof closing argument,” we review a restriction on closing argument for abuse of\n\ndiscretion. United States v. Gaines, 690 F.2d 849, 858 (11th Cir. 1982). “Absent a\n\nshowing of an abuse of discretion the district court will not be reversed for limiting\n\nsummation as long as the defendant has the opportunity to make all legally tenable\n\narguments that are supported by the facts of the case.” Id. Although we review a\n\nrestriction on closing argument for abuse of discretion, we review de novo\n\n\n\n 8\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 9 of 23\n\n\nconstitutional questions. United States v. Mitrovic, 890 F.3d 1217, 1220 (11th Cir.\n\n2018).\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that sufficient\n\nevidence supports Harris’s conviction of Hobbs Act extortion. Second, we explain\n\nthat the district court did not violate Harris’s right to present a complete defense\n\nwhen it limited his closing argument.\n\n A. Sufficient Evidence Supports Harris’s Conviction of Hobbs Act Extortion.\n\n Harris contends that insufficient evidence supports his conviction of Hobbs\n\nAct extortion. The Hobbs Act prohibits interference with interstate commerce by\n\nrobbery or extortion. See 18 U.S.C. § 1951(a). Hobbs Act extortion “contains two\n\nelements: (1) extortion, and (2) interference with interstate commerce.” United\n\nStates v. Bornscheuer, 563 F.3d 1228, 1236 (11th Cir. 2009). Extortion is defined\n\nas “the obtaining of property from another, with his consent, induced by wrongful\n\nuse of actual or threatened force, violence, or fear, or under color of official right.”\n\n18 U.S.C. § 1951(b)(2).\n\n Harris raises two arguments that the government failed to prove extortion.\n\nFirst, he argues that the government presented insufficient evidence to support the\n\nfinding that the inmates consented to his taking of their Green Dot numbers.\n\n\n\n\n 9\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 10 of 23\n\n\nSecond, he argues that the government presented insufficient evidence that he used\n\na requisite means of extortion. Both arguments fail.\n\n 1. The Government Proved the Inmates’ Consent.\n\n Harris first argues that the government failed to prove extortion because\n\ninsufficient evidence supports the finding that he obtained Green Dot numbers\n\nfrom any inmate “with his consent.” At trial, the government argued that inmates\n\nconsented to give Harris their Green Dot numbers out of either fear or a mutual\n\nunderstanding: an inmate would not report Harris for taking his Green Dot number\n\nso that Harris would not report him for possessing contraband. Harris contends that\n\nthe inmates could not consent because he took their Green Dot numbers during\n\nshakedowns that they could not refuse.\n\n Harris’s argument misapprehends the nature of consent for the crime of\n\nextortion, as reflected by the historical development of that offense. “Extortion is\n\none of the oldest crimes in Anglo-American jurisprudence.” Evans v. United\n\nStates, 504 U.S. 255, 278 (1992) (Thomas, J., dissenting); see also 3 Edward Coke,\n\nInstitutes of the Laws of England 149 (1644). At common law, the offense\n\nconcerned public officials who used their office to corruptly obtain money not\n\nowed to them. See 4 Charles E. Torcia, Wharton’s Criminal Law § 654 (15th ed.\n\n2018) (collecting cases). Blackstone explained that common-law extortion “is an\n\nabuse of public justice, which consists in any officer’s unlawfully taking, by colour\n\n\n\n 10\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 11 of 23\n\n\nof his office, from any man, any money or thing of value, that is not due to him, or\n\nmore than is due, or before it is due.” 4 William Blackstone, Commentaries on the\n\nLaws of England 141 (4th ed. 1770). So “in a large Sense,” extortion “signifies any\n\nOppression under Colour of Right,” but “in a strict Sense[,] it signifies the Taking\n\nof Money by any Officer, by Colour of his Office, either where none at all is due,\n\nor not so much is due, or where it is not yet due.” 1 William Hawkins, Treatise of\n\nPleas of the Crown 170 (2d ed. 1724); see also 2 Francis Wharton, A Treatise on\n\nCriminal Law § 1574, at 373 (8th ed. 1880); 2 Matthew Bacon, A New Abridgment\n\nof the Law 453 (3d ed. 1768).\n\n As states codified the crime of extortion, they specified two means by which\n\na person may commit extortion, with one means mirroring the common law and\n\nthe second expanding it beyond public officials to include private individuals. See,\n\ne.g., N.Y. Penal Law § 850 (1909). The Field Code, a nineteenth-century model\n\ncode, defined extortion as “the obtaining of property from another, with his\n\nconsent, induced by a wrongful use of force or fear, or under color of official\n\nright.” 4 Commissioners of the Code, Proposed Penal Code of the State of New\n\nYork § 613 (1865). Extortion “under color of official right” consists of a public\n\nofficial wrongfully using his office to obtain another’s property—the common-law\n\ndefinition of extortion. Evans, 504 U.S. at 260. Extortion “by a wrongful use of\n\nforce or fear” consists of either a private individual or public official wrongfully\n\n\n\n 11\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 12 of 23\n\n\nusing force or fear to obtain another’s property—an expansion of the common-law\n\ndefinition. Id. at 264 n.13. To distinguish the crime of robbery from extortion,\n\nsome statutes specified that “in the former the taking of property must be ‘against\n\nthe will’ of the victim, while in the latter the taking must be ‘with the consent’ of\n\nthe victim, induced by the other’s unlawful threat.” Wayne R. LaFave, Criminal\n\nLaw § 20.4, at 1336 (6th ed. 2017); see also N.Y. Penal Law § 850.\n\n The meaning of “consent” in extortion statutes derives from this distinction\n\nbetween extortion and robbery. Extortion is “closely related to the crime of\n\nrobbery, having in fact been created in order to plug a loophole in the robbery law\n\nby covering sundry threats which will not do for robbery.” LaFave, Criminal Law\n\n§ 20.4, at 1335–36. Common-law robbery required a taking of property from a\n\nperson by use of force or threatened force. See 4 Torcia, Wharton’s Criminal Law\n\n§ 454. But this definition embraced only threats of immediate bodily harm to the\n\nvictim—“doubtless because the severe penalty for robbery, long a capital offense,\n\nrestrained the courts from expanding robbery to include the acquisition of property\n\nby means of other effective threats.” LaFave, Criminal Law § 20.4, at 1332. The\n\ncrime of extortion later “evolved to cover other types of intimidation which were\n\napparently viewed as presenting a lesser threat to personal security and thus not\n\nrequiring the same severe punishment.” Commonwealth v. Froelich, 326 A.2d 364,\n\n368 (Pa. 1974). Because it requires coercion or intimidation of some sort, extortion\n\n\n\n 12\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 13 of 23\n\n\nis never a truly voluntary transaction. So “in spite of the different expressions” that\n\nrobbery must be against the victim’s will while extortion must be with his consent,\n\n“both crimes equally require that the defendant’s threats induce the victim to give\n\nup his property, something which he would not otherwise have done.” LaFave,\n\nCriminal Law § 20.4, at 1336; see also Froelich, 326 A.2d at 368 (opining that\n\n“the use of the concept of consent in this context is not necessarily the most\n\ninformative method of distinguishing between the crimes”).\n\n Against this backdrop, Congress in 1946 enacted the Hobbs Act, which\n\ncodified the federal crime of extortion. 18 U.S.C. § 1951. As state laws had already\n\ndone, the Hobbs Act adopted both the common-law definition of extortion and the\n\nexpanded definition that included the wrongful use of fear. Evans, 504 U.S. at 261.\n\nCongress also followed state laws in distinguishing between robbery and extortion;\n\nthe Hobbs Act defines robbery as obtaining another’s property “against his will”\n\nand extortion as obtaining it “with his consent.” Compare 18 U.S.C. § 1951(b)(1),\n\nwith id. § 1951(b)(2).\n\n The Supreme Court has explained that the term “consent” must be\n\nunderstood according to its historical meaning. “[A]s used in the Hobbs Act, the\n\nphrase ‘with his consent’ is designed to distinguish extortion . . . from robbery.”\n\nOcasio v. United States, 136 S. Ct. 1423, 1435 (2016). That is, consent for Hobbs\n\n\n\n\n 13\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 14 of 23\n\n\nAct extortion “simply signifies the taking of property under circumstances falling\n\nshort of robbery.” Id.\n\n Harris argues that the inmates did not consent to the extortion because they\n\nhad no choice in his taking of their Green Dot numbers, but the term “consent” in\n\nthis context does not connote the degree of voluntariness that Harris suggests. A\n\nvictim who “grudging[ly]” or “reluctantly” gives up his property to a defendant\n\nconsents for purposes of the Hobbs Act. Id. at 1435–36. Consent does not mean\n\n“free of all compulsion.” Froelich, 326 A.2d at 368. As the Second Circuit has\n\nexplained, a victim consents to extortion so long as he “retains some degree of\n\nchoice in whether to comply with the extortionate threat, however much of a\n\nHobson’s choice that may be.” United States v. Zhou, 428 F.3d 361, 371 (2d. Cir.\n\n2005).\n\n Sufficient evidence supports the jury’s finding that the inmates consented to\n\nHarris taking their Green Dot numbers, without reporting him, so that they would\n\nnot implicate themselves for possessing contraband or for being involved in the\n\nGreen Dot scam. Harris confessed to investigators that he took Green Dot numbers\n\nfrom inmates during shakedowns; he explained that, “If I stop somebody walking,\n\n[I] shake ’em down” and “say I’m a [sic] load your money up.” Harris knew that\n\nthe inmates obtained the Green Dot numbers illegally. He told the inmates,\n\n“[S]ince you being illegal around here, I’m a [sic] take your money from you.”\n\n\n\n 14\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 15 of 23\n\n\nAlthough he initially flushed the numbers down the toilet, Harris decided to keep\n\nthe money for himself at an inmate’s suggestion to “stop throwing money away\n\nlike that” and to “load that money up,” even though he was required to report the\n\npossession of contraband. Tripp testified that, to his knowledge, inmates had\n\nneither been disciplined for possessing Green Dot numbers nor complained that\n\ncorrections officers had taken their Green Dot numbers in the summer of 2013.\n\nAnd Oliver, an inmate involved in the scam, testified that he never reported when\n\nofficers took Green Dot numbers from him because he did not want his\n\nparticipation in the scam to come to light. To be sure, the inmates could not have\n\nrefused Harris’s shakedowns, but they could have reported him for keeping the\n\nGreen Dot numbers for his personal use. The jury could have reasonably inferred\n\nthat the inmates grudgingly agreed to keep quiet as Harris took their Green Dot\n\nnumbers, and their grudging consent is all that is required for extortion.\n\n Sufficient evidence also supports the jury’s finding that the inmates\n\nconsented to Harris’s receipt of the Green Dot numbers for his personal benefit.\n\nUnder the Hobbs Act, “[o]btaining property requires not only the deprivation but\n\nalso the acquisition of property.” Sekhar v. United States, 570 U.S. 729, 734 (2013)\n\n(citation and internal quotation marks omitted). So for Hobbs Act extortion, the\n\nvictim’s consent must be to the defendant’s receipt of the property for his personal\n\nbenefit. See id. at 736. The inmates knew that Harris took their Green Dot numbers\n\n\n\n 15\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 16 of 23\n\n\nfor his personal benefit because Harris told the inmates he did so. Despite this\n\nknowledge, the inmates did not report Harris. So the jury could have reasonably\n\ninferred that the inmates consented to Harris’s receipt of their Green Dot numbers\n\nby not reporting him.\n\n Harris argues that the inmates had “obvious motivations” out of self-interest\n\nnot to report him, but consent for extortion does not require a single-minded\n\ndecision. Consent may exist even when other factors “weigh[] powerfully” in a\n\nvictim’s decision to give up his property to the extorter. United States v. Cain, 671\n\nF.3d 271, 283–84 (2d Cir. 2012). Self-interest is always at play in extortion: the\n\nidea behind extortion is that the victim gives up his property so that some worse\n\nharm will not befall him. True, if the inmates had reported Harris for taking their\n\nGreen Dot numbers, they would have necessarily implicated themselves in the\n\nillegal scam and for possessing contraband. But that Hobson’s choice—even if\n\ninfluenced by self-interested motivations—does not eliminate their consent to\n\nHarris’s extortion. The inmates still “retain[ed] some degree of choice in whether\n\nto comply with the extortionate threat” because they could have reported Harris.\n\nZhou, 428 F.3d at 371.\n\n Harris points out that no inmate testified that he consented to the taking and\n\nargues that the jury could only speculate “[a]s to the thought processes of the\n\nunknown inmates,” but this argument about evidence the government did not\n\n\n\n 16\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 17 of 23\n\n\npresent ignores the evidence that it did present. The government presented a\n\nrecorded interview of Harris in which he confessed that he took Green Dot\n\nnumbers from inmates and made clear to them that he knew about their ongoing\n\nscam. It also presented circumstantial evidence that Harris did not report inmates,\n\nand the inmates did not report him. And it presented evidence that inmates did not\n\nreport officers who confiscated their Green Dot numbers because they did not want\n\ntheir participation in the scheme to come to light. Based on the government’s\n\nevidence, the jury could have inferred the inmates consented to Harris’s obtaining\n\nof the numbers. When we view “the evidence in the light most favorable to the jury\n\nverdict and draw all inferences in its favor,” Gonzalez, 834 F.3d at 1214, we must\n\nconclude that the government presented sufficient evidence that the inmates\n\nconsented to Harris’s taking.\n\n 2. The Government Proved that Harris Wrongfully Used Fear.\n\n Harris also argues that the government failed to prove a requisite means of\n\nextortion, but we again disagree. The jury convicted Harris of both alternative\n\nmeans—that is, extortion by the wrongful use of fear and under color of official\n\nright. Because sufficient evidence proved that Harris obtained the inmates’ Green\n\nDot numbers by the wrongful use of fear, we need not address whether sufficient\n\nevidence also proved that he did so under color of official right.\n\n\n\n\n 17\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 18 of 23\n\n\n The first of the alternative means of Hobbs Act extortion occurs when a\n\ndefendant obtains another person’s property “induced by wrongful use of actual or\n\nthreatened force, violence, or fear.” 18 U.S.C. § 1951(b)(2). The government must\n\nprove the “constituent sub-element” of “the victim’s fearful state of mind.”\n\nBornscheuer, 563 F.3d at 1236. Fear means “a state of anxious concern, alarm[,] or\n\napprehension of harm.” Id. (citation and quotation marks omitted). It includes “fear\n\nof economic loss as well as fear of physical violence.” Id. (citation and quotation\n\nmarks omitted). “[I]t is not necessary to show that the defendant caused the fear or\n\nmade a direct threat” because the government need only “prove that the defendant\n\nintended to exploit the fear.” United States v. Flynt, 15 F.3d 1002, 1007 (11th Cir.\n\n1994). When deciding whether victims were induced to give up their property out\n\nof fear, the jury may consider the defendant’s reputation. United States v. Vallejo,\n\n297 F.3d 1154, 1165 (11th Cir. 2002); see also United States v. Grassi, 783 F.2d\n\n1572, 1576 (11th Cir. 1986). As the Second Circuit has explained, a defendant’s\n\n“[b]ad reputation is relevant to the fear element” because “such a reputation\n\nfrequently conveys a tacit threat of violence.” United States v. Fazio, 770 F.3d 160,\n\n165 (2d Cir. 2014) (citation and internal quotation marks omitted).\n\n The government presented sufficient evidence that Harris obtained Green\n\nDot numbers from inmates by the wrongful use of fear. When he confessed to the\n\ninvestigators, Harris acknowledged his reputation as “the asshole” at the prison and\n\n\n\n 18\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 19 of 23\n\n\nexplained how he berated inmates during shakedowns when he found Green Dot\n\nnumbers. He told inmates, “You ain’t shit. You’s-a lame [sic]. You know I’m\n\nfixin’ to take your money from you then. . . . How ’bout that?” Harris knew that\n\nthe inmates tried to avoid him. Indeed, the inmates had a code word for Harris that\n\nthey would yell when he walked into their block of cells. So the jury could have\n\nreasonably inferred that, because of Harris’s reputation, the inmates were in a\n\nfearful state of mind when he discovered their Green Dot numbers during\n\nshakedowns.\n\n The inmates also feared potential punishment. An inmate caught with\n\ncontraband should have been disciplined immediately by being sent to “the\n\nhole”—a punishment of solitary confinement. If the inmates had refused to\n\nacquiesce in Harris’s extortion, they could have been punished for possessing\n\ncontraband. The inmates also would have opened themselves up to retribution from\n\nthe self-described “asshole” for refusing his extortionate scheme. The inmates\n\nfeared economic harm as well: had their illegal conduct surfaced, their ability to\n\ncontinue their lucrative scam would have been threatened. Sufficient evidence\n\npermitted the jury to find that the inmates were in a “state of anxious concern,\n\nalarm[,] or apprehension of harm” when Harris shook them down and found Green\n\nDot numbers. Bornscheuer, 563 F.3d at 1236.\n\n\n\n\n 19\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 20 of 23\n\n\n Although he concedes that “[t]he jury could reasonably infer that inmates\n\nfeared [him] or punishment for their contraband,” Harris argues that the jury could\n\nnot have inferred “that he intended to ‘exploit’ that fear in taking the Green Dot\n\nnumbers,” but we disagree. To convict Harris of extortion by the wrongful use of\n\nfear, the jury had to find that he used fear to induce the inmates’ consent to his\n\nobtaining of their Green Dot numbers. 18 U.S.C. § 1951(b)(2). “Inducement” is\n\ndefined as an “act or process of enticing or persuading another person to take a\n\ncertain course of action.” Inducement, Black’s Law Dictionary (10th ed. 2014).\n\nThe jury could have reasonably found that Harris enticed the inmates to take a\n\ncertain course of action during a shakedown—permit Harris to take their Green\n\nDot numbers for himself without reporting his misconduct—and that he did so\n\nwith knowledge of and the intent to exploit their fear of him and of punishment.\n\nThe jury was “free to choose between or among the reasonable conclusions to be\n\ndrawn from the evidence.” United States v. Watts, 896 F.3d 1245, 1251 (11th Cir.\n\n2018). And Harris’s jury reasonably inferred that he committed extortion by\n\nwrongfully using the inmates’ fear.\n\n B. The District Court Did Not Violate Harris’s Right to Present a Complete\n Defense when It Limited His Closing Argument.\n\n Harris also contends that the district court abused its discretion and violated\n\nhis constitutional right to present a complete defense when it prevented him from\n\narguing in closing that, although he might have committed theft, he did not commit\n\n 20\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 21 of 23\n\n\nextortion. Closing argument is a critical stage of trial. Hunter v. Moore, 304 F.3d\n\n1066, 1070 (11th Cir. 2002). It presents “the last clear chance to persuade the trier\n\nof fact that there may be reasonable doubt of the defendant’s guilt.” Herring v.\n\nNew York, 422 U.S. 853, 862 (1975). But “[t]his is not to say that closing\n\narguments in a criminal case must be uncontrolled or even unrestrained.” Id. A\n\ndistrict court “must be and is given great latitude in . . . limiting the scope of\n\nclosing summations.” Id. It “may ensure that argument does not stray unduly from\n\nthe mark, or otherwise impede the fair and orderly conduct of the trial.” Id.\n\n The Constitution “guarantees criminal defendants a meaningful opportunity\n\nto present a complete defense,” Crane v. Kentucky, 476 U.S. 683, 690 (1986)\n\n(citation and quotation marks omitted), but this guarantee does not mean that a\n\ndefendant can make any argument he desires. See Mitrovic, 890 F.3d at 1221\n\n(explaining that “a defendant’s right to present a complete defense is not absolute,\n\nand is subject to reasonable restrictions”). A district court’s “total denial of the\n\nopportunity for final argument” violates that right. Herring, 422 U.S. at 859. But if\n\nthe court permits a defendant to present the essence of his desired argument to the\n\njury, his right to present a complete defense has not been prejudiced. See United\n\nStates v. Buckley, 586 F.2d 498, 503 (5th Cir. 1978).\n\n The district court’s modest restriction of Harris’s closing argument was\n\nneither an abuse of discretion nor a violation of his right to present a complete\n\n\n\n 21\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 22 of 23\n\n\ndefense. The district court prevented Harris from arguing that he may have\n\ncommitted the specific crime of theft. But it permitted Harris to argue that,\n\nalthough he did something wrong, he did not commit the crime charged in the\n\nindictment. Indeed, during closing argument, his counsel argued that Harris may\n\nhave been guilty of some crime but not the specific crime of extortion. He\n\nexplained that extortion is not “just stealing or robbing.” He later repeated that\n\n“extortion is not stealing. Extortion is not robbing. It has more elements.” The\n\ndistrict court provided Harris an adequate opportunity to present his defense.\n\n A defendant is not entitled “to have the jury choose between the charged\n\noffense and an uncharged offense more to his liking” because that choice\n\nmisconstrues the role of the jury. United States v. Bradshaw, 580 F.3d 1129, 1136\n\n(10th Cir. 2009) (explaining that a district court may exclude a closing argument\n\nthat “would have injected confusion about the actual crime charged”). The jury’s\n\nrole was to decide only whether the government proved that Harris committed\n\nextortion, not whether extortion was the correct charge to bring. So the district\n\ncourt did not abuse its discretion when it ruled that Harris’s argument that the\n\ngovernment should have charged him with theft instead of extortion risked\n\nconfusing the jury.\n\n If the jury believed that the government’s evidence failed to prove extortion,\n\nit could have acquitted Harris. It did not. The district court did not err when it\n\n\n\n 22\n\f Case: 18-12418 Date Filed: 02/19/2019 Page: 23 of 23\n\n\nexercised its “great latitude” to prevent Harris’s closing argument from “stray[ing]\n\nunduly from the mark.” Herring, 422 U.S. at 862.\n\n IV. CONCLUSION\n\n We AFFIRM Harris’s conviction.\n\n\n\n\n 23", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369067/", "author_raw": "WILLIAM PRYOR, Circuit Judge:"}]}	PRYOR	ROSENBAUM	CONWAY	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4591814/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,239	UNITED STATES of America, Plaintiff - Appellant, v. Albert PICKETT, Defendant - Appellee.	United States v. Albert Pickett	2019-02-20	17-13476	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Marcus, Dubina, Goldberg", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 17-13476 Date Filed: 02/20/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13476\n ________________________\n\n D.C. Docket Nos. 0:06-cr-60304-DMM-1,\n 0:16-cv-61298-DMM\n\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellant,\n\nversus\n\nALBERT PICKETT,\n\n Defendant - Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (February 20, 2019)\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 2 of 16\n\n\nBefore MARCUS and DUBINA, Circuit Judges, and GOLDBERG, ∗ Judge.\n\nMARCUS, Circuit Judge:\n\n The district court granted Albert Pickett relief on a 28 U.S.C. § 2255 motion\n\nto vacate his sentence, ruling that, following changes in constitutional law\n\nregarding the Armed Career Criminal Act (ACCA), Pickett no longer qualified as\n\nan armed career criminal and was not eligible for an enhanced sentence. The\n\ngovernment appealed but, before any briefing took place, this Court ruled in\n\nBeeman v. United States, 871 F.3d 1215 (11th Cir. 2017), that § 2255 movants\n\nwere required to meet a higher burden than the one the district court had applied.\n\nThe parties agree that Beeman applies. We have applied it in this case and\n\nconclude that Pickett has not met the standard it sets. However, Pickett did not and\n\ncould not know that he would be required to meet the heightened Beeman standard\n\non appeal, and we cannot discern from the historical record and case law at the\n\ntime of sentencing what the district court had in mind when it sentenced him. The\n\ndistrict court has handled the case with great care, and had little reason to think, in\n\n2007, that distinctions between various clauses in ACCA would take on such\n\nsignificance in the coming decade. We therefore vacate and remand this case to\n\n\n\n\n∗Honorable Richard W. Goldberg, Judge for the United States Court of International Trade,\nsitting by designation.\n\n 2\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 3 of 16\n\n\nthe district court, where Pickett will have the opportunity to make his case for\n\nrelief under the new standard.\n\n I.\n\n A.\n\n In 2006 Pickett pled guilty to one count of being a felon in possession of a\n\nfirearm, in violation of 18 U.S.C. § 922(g)(1). Pickett had the requisite predicate\n\noffenses to qualify as an armed career criminal under ACCA. The statute provides\n\nan enhanced sentence for a violation of § 922(g) by a defendant with three or more\n\nprior convictions for a “violent felony” or a “serious drug offense.” Id.\n\n§ 924(e)(1). Pickett’s enhancement was based on four prior Florida convictions:\n\nstrong armed robbery in 1988; battery on a law enforcement officer in 1991;\n\naggravated battery on a pregnant victim in 1993; and battery on a law enforcement\n\nofficer and resisting arrest with violence in 2001.\n\n ACCA defines a “violent felony” as “any crime punishable by a term of\n\nimprisonment exceeding one year” that:\n\n (i) has as an element the use, attempted use, or threatened use of\n physical force against the person of another; or\n (ii) is burglary, arson, or extortion, involves use of explosives, or\n otherwise involves conduct that presents a serious potential risk\n of physical injury to another.\n\n\n\n\n 3\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 4 of 16\n\n\n18 U.S.C. § 924(e)(2)(B) (emphasis added). Subsection (i) is called the “elements\n\nclause.” The first part of subsection (ii) is known as the “enumerated offenses\n\nclause,” and the second is the “residual clause.”\n\n On February 2, 2007, Pickett was sentenced to 180 months’ imprisonment,\n\nto be followed by five years of supervised release. He raised no objections to the\n\nPresentence Investigation Report (PSI), which included the four predicate offenses\n\nin the Guidelines calculation, or to the final sentence. Nor did Pickett file a direct\n\nappeal with this Court.\n\n Pickett lodged his first, unsuccessful § 2255 motion in 2010. He claimed\n\nthat, under a then-recent Supreme Court decision, Johnson v. United States (Curtis\n\nJohnson), 559 U.S. 133 (2010), he no longer had three qualifying predicate\n\noffenses. Curtis Johnson had held that simple battery under Florida law was not\n\ncategorically a violent felony under ACCA’s elements clause because it could be\n\ncommitted by a mere touching and therefore did not necessarily have as an element\n\nthe use of physical force. Id. at 139–40. Applying the modified categorical\n\napproach, a magistrate judge reasoned that Pickett’s three battery convictions were\n\nviolent felonies under the residual clause. The district court adopted this\n\nreasoning, denied the motion on the merits, and also found that it was procedurally\n\nbarred.\n\n\n\n\n 4\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 5 of 16\n\n\n The residual clause thereafter was held unconstitutional by the Supreme\n\nCourt in Johnson v. United States (Johnson), 135 S. Ct. 2551, 2563 (2015). The\n\nCourt concluded that it was impermissibly vague because “the indeterminacy of\n\nthe wide-ranging inquiry required by the residual clause both denie[d] fair notice to\n\ndefendants and invite[d] arbitrary enforcement by judges.” Id. at 2557. Johnson’s\n\nrule was made retroactive in Welch v. United States, 136 S. Ct. 1257, 1268 (2016).\n\n Pickett applied for leave to file the instant motion, his second § 2255 motion,\n\nin 2016, after Johnson and Welch. He argued that, without the residual clause,\n\nnone of the four convictions identified in his PSI as the basis for enhancement\n\nremained crimes of violence. This meant he no longer had three predicate offenses\n\nunder ACCA and did not qualify as an armed career criminal. He petitioned for a\n\nCertificate of Appealability (COA), which this Court granted. A panel of this\n\nCourt observed that “[t]he record . . . [was] unclear as to which clause of the\n\nACCA the district court relied on in enhancing Pickett’s sentence.”\n\n The case then returned to the district court, the same court that had initially\n\nsentenced Pickett. The court granted Pickett’s motion and vacated his sentence.\n\nAt that time, the showing required to make a successful Johnson claim was not\n\naltogether clear. One case had suggested in dicta that the movant had to “prove[]\n\nthat he was sentenced using the residual clause and that the use of that clause made\n\na difference in the sentence.” In re Moore, 830 F.3d 1268, 1273 (11th Cir. 2016)\n\n\n 5\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 6 of 16\n\n\n(per curiam). Another said, also in dicta, that it was enough if “§ 924(c) may no\n\nlonger authorize [the] sentence as that statute stands after Johnson” and would not\n\nhave focused on historical inquiry about sentencing. In re Chance, 831 F.3d 1335,\n\n1341 (11th Cir. 2016). The magistrate judge who issued a Report and\n\nRecommendation in Pickett’s case adopted the latter standard, which is easier for a\n\nmovant to meet. The district court did not comment on this dispute, but adopted\n\nmost of the magistrate judge’s reasoning including the application of the lesser of\n\nthe two burdens. Under the applicable law in May 2017, Pickett lacked three\n\nconvictions for violent felonies, 1 and so he was granted collateral relief under\n\n§ 2255 by the district court at that time.\n\n The district court entered an amended judgment that sentenced Pickett to\n\n120 months’ imprisonment plus six months’ supervised release. Since he had\n\nalready served ten years, he was released from custody. The government then filed\n\nthis appeal.\n\n\n\n\n1\n The district court found that the felony battery statute under which Pickett was convicted in\n1991 was a divisible statute subject to the modified categorical approach, that the PSI was\ntherefore not adopted and that based on the limited record the government had made available,\nhis battery conviction was not a violent felony for ACCA purposes. The 2001 battery on a law\nenforcement officer conviction remained a violent felony because it was accompanied by a\nconviction for resisting arrest with violence. Finally, the court found that battery on a pregnant\nvictim was also a divisible offense, and that based on the sparse record that conviction was not a\nviolent felony either.\n 6\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 7 of 16\n\n\n B.\n\n After the government filed its appeal, but before any briefing had taken\n\nplace, a panel of this Court decided Beeman v. United States, 871 F.3d 1215 (11th\n\nCir. 2017), which provided a precedential answer to what a movant needed to show\n\nto succeed on a § 2255 motion. See Beeman, 871 F.3d at 1221–22. We concluded\n\nthat the more stringent standard was appropriate, and the parties agree that it\n\napplies in this case. Thus, “the movant must show that -- more likely than not -- it\n\nwas use of the residual clause that led to the sentencing court’s enhancement of\n\n[the movant’s] sentence.” Id. at 1222. The movant can succeed in the face of\n\nsome uncertainty, but must show more than just equipoise -- the motion fails “[i]f\n\nit is just as likely that the sentencing court relied on the elements or enumerated\n\noffenses clause, solely or as an alternative basis for the enhancement.” Id. Put\n\nsimply, it must be more likely than not that the sentence was based on the residual\n\nclause and only the residual clause. See id. at 1221–22.\n\n Whether the residual clause was the basis for the sentencing court’s\n\nenhancement is a question of “historical fact.” Id. at 1224 n.5. To determine this\n\n“historical fact” we look first to the record, and then, if the record proves\n\nunderdeterminative, we can look to the case law at the time of sentencing.\n\nSometimes the answer will be clear -- “[s]ome sentencing records may contain\n\ndirect evidence: comments or findings by the sentencing judge indicating that the\n\n\n 7\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 8 of 16\n\n\nresidual clause was relied on and was essential.” Id. at 1224 n.4. We might also\n\nlook elsewhere in the record, to a PSI, for example, to find “circumstantial\n\nevidence.” Id.\n\n Denying relief in Beeman, we noted that the movant had identified no\n\n“precedent [from the time he was sentenced] holding, or otherwise making\n\nobvious, that a violation of [his state crime] qualified as a violent felony only under\n\nthe residual clause.” Id. at 1224. Decisions that came down after the sentencing\n\nwould “cast[] very little light, if any, on the key question of historical fact.” Id. at\n\n1224 n.5.\n\n Here, by necessity, we also consider the state of the law involving a related\n\nstatute. Statutory definitions for battery on a law enforcement officer and battery\n\non a pregnant victim are essentially defined as simple battery against a particular\n\ntype of person. See Fla. Stat. §§ 784.03 (simple battery); 784.045(b) (pregnant\n\nvictim); 784.07(2) (law enforcement officer). Battery on a law enforcement officer\n\nand battery on a pregnant victim thus have as their elements all the elements of\n\nsimple battery plus the additional element of a particular identity for the victim.\n\nThe elements clause requires that a felony “has as an element the use, attempted\n\nuse, or threatened use of physical force against the person of another.” 18 U.S.C.\n\n§ 924(e)(2)(B)(i). If battery on a law enforcement officer or battery on a pregnant\n\nvictim were to qualify under the elements clause, the elements most likely to count\n\n\n 8\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 9 of 16\n\n\nas “the use, attempted use, or threatened use of physical force” are those that the\n\nstatutes incorporate from simple battery.Thus, in this case at least, looking to a\n\nrelated statute -- the simple battery statute -- is unavoidable and appropriate.\n\n II.\n\n In a proceeding on a motion to vacate, set aside, or correct sentence, we\n\nreview the district court’s factual findings for clear error and legal determinations\n\nde novo. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008) (per\n\ncuriam).\n\n The parties agree that there is nothing in this record that tells us which\n\nclause the district court had in mind when it applied the ACCA enhancement. As a\n\nresult, the basic argument on appeal is about the state of the law in February 2007\n\nwhen the ACCA enhancement was applied to Pickett’s sentence. To overcome\n\nBeeman, Pickett needs to show that it is more likely than not that the district court\n\nonly relied on the residual clause. Pickett does not have to show that the\n\nconvictions only qualified under the residual clause -- this would be an escalation\n\nof the burden of proof above what Beeman requires. Thus we are seeking to\n\ndetermine what the district court actually had in mind when it sentenced Pickett\n\nunder ACCA. As a result, absent clear precedent showing that the court could only\n\nhave used one clause or another, a conviction’s eligibility under one or the other\n\nclause cannot be determinative, see Beeman, 871 F.3d at 1224–25 & n.5, because\n\n\n 9\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 10 of 16\n\n\nthe conviction’s arguable qualification under the elements clause would not\n\nnecessarily mean the judge relied on that clause.\n\n Pickett argues that, in 2007, Florida battery clearly qualified under the\n\nresidual clause and that it was uncertain at best whether it also qualified under the\n\nelements clause. The government argues, however, that Florida battery did qualify\n\nunder the elements clause so, regardless of whether it qualified under the residual\n\nclause, it’s not “more likely than not” that the district court only relied on the\n\nresidual clause. The government says the court would have had no reason not to\n\nrely on both.\n\n The convictions for battery on a law enforcement officer and battery on a\n\npregnant victim almost certainly qualified under the residual clause, though no\n\nbinding precedent said as much at the time. At the time of Pickett’s sentencing, all\n\nwe required to apply the residual clause was that the prohibited conduct “present[]\n\na substantial risk of physical injury to another.” United States v. McGill, 450 F.3d\n\n1276, 1282 (11th Cir. 2006) (emphasis removed); see also United States v. Gunn,\n\n369 F.3d 1229, 1238 (11th Cir. 2004). We didn’t need to ask, for example,\n\nwhether “hostile, aggressive acts” were involved. McGill, 450 F.3d at 1280.\n\nPickett also cites an unpublished decision from 2001, United States v. Rozier\n\n(“Rozier I”), 37 F. App’x 499 (11th Cir. 2002) (per curiam) (table) (unpublished),\n\nin which we said that Florida battery qualified under the residual clause. But not\n\n\n 10\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 11 of 16\n\n\nonly was Rozier I unpublished in the typical sense that it was not printed in the\n\nFederal Reporter, but it did not even appear in the Federal Appendix except as a\n\ntable decision. See id. Since Rozier I is nonbinding and difficult to locate, there is\n\nprecious little reason to think the district court followed or even saw this case. It\n\nwould not have needed to dig so deep in order to find that the convictions easily\n\nqualified under the residual clause.\n\n At oral argument in this case, Pickett’s counsel drew our attention to a\n\nfootnote in the district court order granting Pickett’s relief in which the court noted\n\nthat “Mr. Pickett had little reason to object to the PSI given the residual clause.”\n\nThis comment does not add very much. We read the district court to be referring\n\nto the residual clause because that was the most obvious clause under which the\n\nconvictions qualified. Even if this was the ground on which any objection would\n\nmost obviously fail, that does not necessarily mean even by implication that the\n\nelements clause could not also have been relied on. The footnote, therefore, adds\n\nvery little to our understanding of what the district court was thinking in 2007.\n\n If, indeed, the district court thought the four predicate offenses qualified\n\nunder the residual clause, this would only get Pickett halfway. He also needs to\n\nshow that it is unlikely that the trial court thought the convictions also qualified\n\nunder the elements clause. On this point, Pickett notes that Rozier I held that\n\nbattery on a law enforcement officer did not categorically satisfy the elements\n\n\n 11\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 12 of 16\n\n\nclause. He also points to United States v. Wright, 181 F. App’x 914 (11th Cir.\n\n2006) (per curiam), in which we said that “battery is not always a violent felony,”\n\nwhile citing a Fourth Circuit case holding that Maryland battery did not always\n\nsatisfy the elements clause. Id. at 917 (citing United States v. Simms, 441 F.3d\n\n313, 315 (4th Cir. 2006)). Nothing in this collection of cases amounts to binding\n\nprecedent and, as we’ve said, we find it doubtful that the district court even saw\n\nRozier I.\n\n Against this, the government points us to United States v. Glover, 431 F.3d\n\n744 (11th Cir. 2005) (per curiam), where this Court observed that “battery on a law\n\nenforcement officer is a crime of violence” under a provision of the Sentencing\n\nGuidelines that mirrored the language of the elements clause. 2 Id. at 749. In\n\nGlover, among other issues, the defendant had claimed that his sentence was\n\ninfected by constitutional error under United States v. Booker, 543 U.S. 220\n\n(2005). Glover, 431 F.3d at 748–49. A constitutional Booker error occurs when a\n\nsentence is enhanced “based on facts found by the judge that were neither admitted\n\nby the defendant nor found by the jury.” Id. at 749 (citation omitted). Glover\n\nargued that the district court had found the fact “that his offense of battery on a law\n\n\n\n2\n The definition of “violent felony” under ACCA is nearly identical to the definition of “crime of\nviolence” under the Sentencing Guidelines, and both definitions have included an identical\nresidual clause. 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2(a)(2)(2006). As a result, decisions\nabout one have been applied to the other. See United States v. Matchett, 802 F.3d 1185, 1193–\n94 (11th Cir. 2015).\n 12\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 13 of 16\n\n\nenforcement officer constitutes a ‘crime of violence,’” but we explained two\n\nreasons why this was not the case: first, “Booker left undisturbed the ‘prior\n\nconvictions’ exception to the rule that a jury must find facts that enhance a\n\nsentence,” and “[s]econd, whether a previous conviction is a ‘crime of violence’ is\n\na question of law, not of fact,” because it requires interpreting the Guidelines. Id.\n\nThe statement that “battery on a law enforcement officer is a crime of violence”\n\nfollows in the next paragraph. Id.\n\n In context, it seems to us that this statement is dicta. See e.g., Edwards v.\n\nPrime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“All statements that go beyond\n\nthe facts of the case . . . are dicta.”); United States v. Eggersdorf, 126 F.3d 1318,\n\n1322 n.4 (11th Cir. 1997) (defining dicta as language “not necessary to deciding\n\nthe case then before us”); see also United States v. Hunter, 172 F.3d 1307, 1310\n\n(11th Cir. 1999) (E. Carnes, J., concurring) (“The holdings of a prior decision can\n\nreach only as far as the facts and circumstances presented to the Court in the case\n\nwhich produced that decision.”). Either of the reasons offered by this Court why\n\nthe district court had not impermissibly found a fact would have sufficed as a\n\nholding on the constitutional Booker issue, and neither alternative holding appears\n\nto have turned on the court’s observation that battery on a law enforcement officer\n\nwas a crime of violence. See id. What’s more, Glover concluded by vacating the\n\nentire sentence because of a statutory Booker error, see id. at 750, thus rendering\n\n\n 13\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 14 of 16\n\n\nthe entire constitutional discussion unnecessary and, arguably, dicta. As a result,\n\nnothing that Glover had to say on this matter would have been any more binding\n\nthan the unpublished opinions Pickett has cited. See e.g., Edwards, 602 F.3d at\n\n1298 (“[D]icta is not binding on anyone for any purpose.”).\n\n The government also points to cases that came after Glover and after\n\nPickett’s sentencing which characterized Glover as having held that battery on a\n\nlaw enforcement officer was a crime of violence. E.g., United States v. Young, 527\n\nF.3d 1274, 1277–78 (11th Cir. 2008) (per curiam) (“We have held that battery on a\n\nlaw enforcement officer is a crime of violence.” (citing Glover, 441 F.3d at 749)).\n\nHowever, cases postdating the sentencing “cast[] very little light, if any, on the key\n\nquestion of historical fact.” Beeman, 871 F.3d at 1224 n.5.\n\n Thus, we are unable to conclude that it is more likely than not that the\n\ndistrict court relied only on the residual clause. Faced with this uncertain\n\nprecedential landscape, the district court likely would have quickly determined that\n\nPickett’s battery convictions qualified under the residual clause, but we do not\n\nknow what else it might have thought. The case law would not have given any\n\nfirm answers about the elements clause, so it appears to us to be a very weak\n\ncircumstantial read upon which to infer what the district court thought. We cannot\n\nknow either what the court thought about the elements clause -- or even whether\n\nthe court thought about it at all. With the residual clause plainly available, the\n\n\n 14\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 15 of 16\n\n\ndistrict court would not have needed to consider the elements clause at all, but we\n\ngenuinely do not know what actually happened. Pickett has, accordingly, failed to\n\ncarry a burden he did not know would apply when he argued before the district\n\ncourt at the time he was resentenced.\n\n III.\n\n Because the parties had no occasion to address the requirement established\n\nby Beeman in the district court, a remand is appropriate. See Schumann v. Collier\n\nAnesthesia, P.A., 803 F.3d 1199, 1203 (11th Cir. 2015) (remanding after this Court\n\nadopted a new legal test “[t]o allow the district court to apply this test in the first\n\ninstance and, if the district court desires, to give the parties an opportunity to\n\nfurther develop the record to address the components of the test”); see also Thomas\n\nv. Att’y Gen., 795 F.3d 1286, 1294 (11th Cir. 2015) (remanding in a\n\npostconviction case and directing the district court “to consider the intervening\n\nchanges” in applicable law from the Supreme Court and Eleventh Circuit). On\n\nremand, the district court shall apply the new standard this Court enunciated in\n\nBeeman to the facts and circumstances as he may find them in this case. See Long\n\nv. United States, 626 F.3d 1167, 1170 (11th Cir. 2010) (per curiam) (remanding in\n\na § 2255 case because “we have long required the district courts . . . to facilitate\n\nmeaningful appellate review by developing adequate factual records and making\n\nsufficiently clear findings as to the key issues.”). The district court obviously is in\n\n\n 15\n\f Case: 17-13476 Date Filed: 02/20/2019 Page: 16 of 16\n\n\na better position than we are to evaluate what likely happened in 2007, especially\n\nsince we are remanding this case to the very judge who initially sentenced Pickett.\n\nAccordingly, we vacate and remand for further proceedings consistent with this\n\nopinion. On remand, the district court should consider in the first instance whether\n\nPickett can show, as a historical fact, that he was more likely than not sentenced\n\nunder only the residual clause. See Beeman, 871 F.3d 1221–22.\n\n VACATED AND REMANDED.\n\n\n\n\n 16", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369492/", "author_raw": "MARCUS, Circuit Judge:"}]}	MARCUS	DUBINA	GOLDBERG	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592239/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,592,373	UNITED STATES of America, Plaintiff-Appellee, v. Frank AMODEO, Defendant-Appellant.	United States v. Frank Amodeo	2019-02-21	16-15687	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Pryor, Rosenbaum, Moore", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 15-12643 Date Filed: 02/21/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n Nos. 15-12643 & 16-15687\n ________________________\n\n D.C. Docket No. 6:08-cr-00176-JA-GJK-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nFRANK AMODEO,\n\n Defendant-Appellant.\n\n ________________________\n\n Appeals from the United States District Court\n for the Middle District of Florida\n _______________________\n\n (February 21, 2019)\n\nBefore WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and MOORE, \nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n\n\n Honorable K. Michael Moore, United States District Chief Judge for the Southern District of\nFlorida, sitting by designation.\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 2 of 17\n\n\n This appeal presents the question whether a criminal defendant has standing\n\nto appeal the partial vacatur of the final forfeiture order entered in his case. Frank\n\nAmodeo pleaded guilty to involvement in a criminal scheme to divert his clients’\n\npayroll taxes. He agreed to forfeit many assets, including the ownership of two\n\nshell corporations. The district court entered a preliminary forfeiture order that\n\ndivested Amodeo of those assets. After no third parties asserted an interest in the\n\ncorporations, the court entered a final forfeiture order that transferred ownership of\n\nthem to the government. Years later, the corporations were named as defendants in\n\na lawsuit brought by victims of Amodeo’s scheme. The government then moved to\n\nvacate the final forfeiture order as to the corporations, and the district court granted\n\nthat motion. Amodeo appeals the partial vacatur on the ground that the district\n\ncourt lacked the authority to enter it. But because the partial vacatur caused him no\n\ninjury, Amodeo lacks standing to complain about it. We dismiss his appeal for lack\n\nof jurisdiction.\n\n I. BACKGROUND\n Frank Amodeo instigated a criminal scheme to divert his clients’ payroll\n\ntaxes to his companies’ bank accounts instead of remitting that money to the\n\nInternal Revenue Service. After a grand jury returned a 27-count indictment,\n\nAmodeo reached a plea agreement with the government. He pleaded guilty to\n\nconspiracy to defraud the United States, failure to collect and remit payroll taxes,\n\n\n\n 2\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 3 of 17\n\n\nand obstruction of an agency investigation. He agreed to forfeit many assets,\n\nincluding approximately $180 million, multiple properties, luxury cars, a Lear jet,\n\nand the ownership of several corporations. This appeal concerns two of those\n\ncorporations: AQMI Strategy Corporation and Nexia Strategy Corporation.\n\n The district court entered a preliminary forfeiture order for the assets listed\n\nin Amodeo’s plea agreement, including AQMI and Nexia. The preliminary\n\nforfeiture order stated that it “shall be a final order of forfeiture as to the defendant,\n\nFrank L. Amodeo.” The district court sentenced Amodeo to 270 months of\n\nimprisonment followed by three years of supervised release.\n\n The government then moved for a final forfeiture order. No third parties\n\nclaimed an interest in the corporations. The district court granted the motion and\n\nentered the final forfeiture order. It ordered that Amodeo’s assets, including the\n\ncorporations, were “condemned and forfeited to the United States,” so “clear title\n\nto the property is now vested in the United States.”\n\n Amodeo appealed the final forfeiture order, but we dismissed his appeal for\n\nlack of jurisdiction. United States v. Amodeo, No. 09-16170 (11th Cir. Mar. 26,\n\n2010). We explained that Amodeo lacked standing to appeal the final forfeiture\n\norder because the preliminary forfeiture order “fully and finally resolved all of\n\nFrank Amodeo’s interests in the properties referenced in the . . . final forfeiture\n\norder.” Id. at 1. Amodeo’s lack of standing meant this Court lacked jurisdiction\n\n\n\n 3\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 4 of 17\n\n\nover his appeal. Id. Amodeo also appealed his conviction, which we affirmed.\n\nUnited States v. Amodeo, 387 F. App’x 953 (11th Cir. 2010).\n\n A few years later, victims of Amodeo’s scheme filed a complaint against\n\nseveral corporations, including the forfeited AQMI and Nexia. See Complaint at 3,\n\nPalaxar Grp. v. Williams, No. 6:14-cv-00758-ORL-28GJK (M.D. Fla. Sept. 18,\n\n2013), ECF No. 1. After AQMI and Nexia were served as defendants in the suit,\n\nthe government moved to vacate the final forfeiture order only as to those\n\ncorporations. The government explained that both corporations were shell\n\ncorporations without any assets and that it had sought their forfeiture “to prevent\n\ntheir continued illegal use by [Amodeo] and to deprive [him] of any economic\n\nvalue that the corporations may have.” The government informed the district court\n\nthat it would not defend either corporation in the Palaxar suit and “believe[d]\n\nit . . . in the best interest of the [g]overnment to divest ownership of Nexia and\n\nAQMI.” The district court granted the motion and vacated the final forfeiture order\n\nas to AQMI and Nexia. The final forfeiture order “otherwise remain[ed] in effect.”\n\n Amodeo moved to reconsider the partial vacatur on the ground that the\n\ndistrict court lacked jurisdiction to alter the final forfeiture order, but the district\n\ncourt denied his motion. The court confirmed that it had vacated only the final\n\nforfeiture order in part, not the preliminary forfeiture order. It explained that,\n\n“[j]ust as Amodeo lacked standing to challenge the final order of forfeiture on\n\n\n\n 4\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 5 of 17\n\n\nappeal, Amodeo also lack[ed] standing to challenge the partial vacatur of that\n\norder.” Amodeo appealed the denial of his motion to reconsider the partial\n\nvacatur—the appeal before us now.\n\n Meanwhile, Amodeo moved to intervene in the pending Palaxar suit. He\n\ncontended that the partial vacatur of the final forfeiture order restored his\n\nownership of AQMI and Nexia. The district court denied the motion, and we\n\naffirmed that denial. See Palaxar Grp. v. Williams, 714 F. App’x 926, 928–29\n\n(11th Cir. 2017). We concluded that the partial vacatur did not return the\n\nownership of the corporations to Amodeo because “the preliminary forfeiture\n\norder, which divested Mr. Amodeo of his ownership interest, was never disturbed.”\n\nId. at 929 & n.4. We explained that “[t]he government did not return its interest in\n\nAQMI to Mr. Amodeo; instead, the government relinquished its ownership interest\n\nafter AQMI was sued.” Id. at 928. And we noted that “[a] previous panel of this\n\ncourt recognized as much, and we have no basis or reason to reach a different\n\nconclusion.” Id. at 928–29.\n\n\n\n\n 5\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 6 of 17\n\n\n II. STANDARD OF REVIEW\n\n We review de novo questions of our jurisdiction. United States v.\n\nCartwright, 413 F.3d 1295, 1299 (11th Cir. 2005).\n\n III. DISCUSSION\n\n Amodeo argues that the district court lacked jurisdiction to partially vacate\n\nthe final forfeiture order, but we lack jurisdiction to consider that question in this\n\nappeal. “On every writ of error or appeal, the first and fundamental question is that\n\nof jurisdiction, first, of this court, and then of the court from which the record\n\ncomes.” Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)\n\n(emphases added); accord Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–\n\n95 (1998); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 547 (1986);\n\nGreat S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900); Castleberry v.\n\nGoldome Credit Corp., 408 F.3d 773, 779 (11th Cir. 2005). So this Court must\n\nsatisfy itself of its jurisdiction before we can address whether the district court had\n\njurisdiction. See Peppers v. Cobb County, 835 F.3d 1289, 1296 (11th Cir. 2016)\n\n(“[W]e are obliged first to consider our power to entertain the claim.”).\n\n That this Court must first satisfy itself of our own jurisdiction is a rule\n\nwithout exception: “Without jurisdiction[,] the court cannot proceed at all in any\n\ncause.” Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 74 U.S. 506, 514\n\n(1868)). “[J]urisdiction is power to declare the law,” so when it does not exist, “the\n\n\n\n 6\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 7 of 17\n\n\nonly function remaining to the court is that of announcing the fact and dismissing\n\nthe cause.” Id. To do otherwise would “violate[] the fundamental constitutional\n\nprecept of limited federal power” and so “offend[] fundamental principles of\n\nseparation of powers.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409–10\n\n(11th Cir. 1999) (citations and internal quotation marks omitted).\n\n Amodeo argues that the doctrine of standing does not apply to his criminal\n\ncase, but Article III of the Constitution, from which standing derives, governs our\n\njurisdiction in every type of case. Article III vests the judiciary with jurisdiction\n\nonly over “Cases” and “Controversies.” U.S. Const. Art. III, § 2. To have a case or\n\ncontroversy, a litigant must establish that he has standing, which must exist\n\n“throughout all stages of litigation.” Hollingsworth v. Perry, 570 U.S. 693, 705\n\n(2013). “That means that standing must be met by persons seeking appellate\n\nreview, just as it must be met by persons appearing in courts of first instance.” Id.\n\n(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)); see\n\nalso Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th Cir. 2003) (“Litigants must\n\nestablish their standing not only to bring claims, but also to appeal judgments.”).\n\nTo establish appellate standing, a litigant must “prove that he has suffered a\n\nconcrete and particularized injury that is fairly traceable to the challenged conduct,\n\nand is likely to be redressed by a favorable judicial decision.” Hollingsworth, 570\n\nU.S. at 704.\n\n\n\n 7\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 8 of 17\n\n\n In the context of appellate standing, the primary meaning of the injury\n\nrequirement is adverseness: “Only a litigant who is aggrieved by the judgment or\n\norder may appeal.” Wolff, 351 F.3d at 1354 (citation and internal quotation marks\n\nomitted). “For there to be . . . a case or controversy, it is not enough that the party\n\ninvoking the power of the court have a keen interest in the issue,” Hollingsworth,\n\n570 U.S. at 700; he “must seek relief for an injury that affects him in a personal\n\nand individual way,” id. at 705 (citation and internal quotation marks omitted). So\n\nan appellant “must possess a direct stake in the outcome of the case.” Id. To\n\nestablish standing in a forfeiture proceeding, we have looked to whether the litigant\n\nhas an interest in the property subject to the forfeiture because, absent an interest in\n\nthat property, there is no case or controversy. United States v. $38,000.00 in U.S.\n\nCurrency, 816 F.2d 1538, 1543 (11th Cir. 1987).\n\n Amodeo argues that he has standing because the ownership of the\n\ncorporations might have reverted to him when the district court partially vacated\n\nthe final forfeiture order, but we disagree. Forfeiture divests a criminal defendant\n\nof property that can be described generally as the fruits of his crime. Under Federal\n\nRule of Criminal Procedure 32.2, criminal forfeiture is split into two phases: the\n\nfirst phase concerns the defendant’s ownership of the property to be forfeited, and\n\nthe second phase concerns any third party’s ownership of that property.\n\n\n\n\n 8\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 9 of 17\n\n\n When, as Amodeo did, a criminal defendant pleads guilty and agrees to the\n\nforfeiture, the district court must promptly enter a preliminary forfeiture order.\n\nFed. R. Crim. P. 32.2(b)(1)–(2). “At sentencing—or at any time before sentencing\n\nif the defendant consents—the preliminary forfeiture order becomes final as to the\n\ndefendant.” Fed. R. Crim. P. 32.2(b)(4)(A) (emphasis added). Although the\n\npreliminary forfeiture order is final as to the defendant, it “remains preliminary as\n\nto third parties until the ancillary proceeding is concluded.” Id. The defendant may\n\nappeal the preliminary forfeiture order. Fed. R. Crim. P. 32.2(b)(4)(C).\n\n The district court conducts an ancillary proceeding so that third parties can\n\nassert their interest in the property. Fed. R. Crim. P. 32.2(c). Although it occurs in\n\nthe context of criminal forfeiture, the ancillary proceeding is civil in nature. United\n\nStates v. Davenport, 668 F.3d 1316, 1323 (11th Cir. 2012). The ancillary\n\nproceeding exists to determine whether a third party has an interest in the property\n\nthat the defendant has already forfeited—not to relitigate the preliminary order’s\n\nfinding of forfeitability. Id. at 1321. So the ancillary proceeding determines\n\nwhether a third party or the government will obtain the forfeited property.\n\n After the district court accounts for the interest of any third parties, it must\n\nenter a final forfeiture order. Fed. R. Crim. P. 32.2(c)(2). A defendant “generally\n\nhas no standing to participate in the ancillary proceeding.” United States v. Pelullo,\n\n178 F.3d 196, 202 (3d Cir. 1999). And he cannot appeal the final forfeiture order\n\n\n\n 9\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 10 of 17\n\n\nbecause it “has no bearing on the defendant’s rights.” United States v. Flanders,\n\n752 F.3d 1317, 1343 (11th Cir. 2014).\n\n Amodeo’s argument that he potentially owns the corporations due to the\n\npartial vacatur is mistaken. The preliminary forfeiture order extinguished all of\n\nAmodeo’s interest in the corporations. United States v. Gross, 213 F.3d 599, 600\n\n(11th Cir. 2000). In fact, Amodeo expressly agreed that “the preliminary order of\n\nforfeiture shall be final as to the defendant at the time it is entered.” So when the\n\ndistrict court completed the first phase of the forfeiture by entering the preliminary\n\nforfeiture order, Amodeo had given up his interest in the corporations. Because no\n\nthird parties asserted an interest during the ancillary proceeding, the government\n\ntook ownership of the corporations when the district court entered the final\n\nforfeiture order.\n\n The partial vacatur of the final forfeiture order did not revive Amodeo’s\n\nownership of the corporations. When an order is vacated, “the rights of the parties\n\nare left as though no such judgment had ever been entered.” United States v. De La\n\nMata, 535 F.3d 1267, 1276–77 (11th Cir. 2008) (quoting 49 C.J.S. Judgments\n\n§ 357 (2008)). When the district court vacated the final forfeiture order, it vacated\n\nonly the “Final Forfeiture Order (Doc. 177) . . . to the extent it pertains to Nexia\n\nStrategy Corporation and AQMI Strategy Corporation.” Considering where the\n\nparties would stand had the district court never entered a final forfeiture order,\n\n\n\n 10\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 11 of 17\n\n\nAmodeo would still lack any interest in the corporations because he forfeited it\n\nunder the preliminary forfeiture order—which remains intact.\n\n We have twice ruled that Amodeo had no interest left in the corporations\n\nafter the entry of the preliminary forfeiture order. We first concluded that Amodeo\n\nlacked standing to appeal the final forfeiture order because the “preliminary order\n\nof forfeiture fully and finally resolved all of Frank Amodeo’s interests in the\n\nproperties referenced in the . . . final forfeiture order.” Amodeo, No. 09-16170, at\n\n1. Then, several years later, we ruled that the district court correctly denied\n\nAmodeo’s motion to intervene in Palaxar because he lacked an interest in the\n\ndefendant-corporations. 714 F. App’x at 928. We concluded that “[t]he\n\ngovernment did not return its interest in AQMI to Mr. Amodeo [after the partial\n\nvacatur]; instead, the government relinquished its ownership interest after AQMI\n\nwas sued.” Id. We again explained that “the preliminary forfeiture order, which\n\ndivested Mr. Amodeo of his ownership interest, was never disturbed.” Id. at 929\n\nn.4. Today, we reach the same conclusion for a third time: Amodeo has no interest\n\nin either AQMI or Nexia.\n\n That conclusion means that Amodeo lacks standing to appeal the partial\n\nvacatur. We have “consistently adhered to one major proposition without\n\nexception: One who has no interest of his own at stake always lacks standing.”\n\nUnited States v. Weiss, 467 F.3d 1300, 1311 (11th Cir. 2006) (emphasis omitted)\n\n\n\n 11\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 12 of 17\n\n\n(citation and internal quotation marks omitted). Because the partial vacatur did not\n\nrestore Amodeo’s ownership of the corporations, or impose their potential\n\nliabilities on him, he has no interest at stake. That is, the partial vacatur did not\n\naggrieve—or even affect—Amodeo, so he has suffered no injury from it. To put\n\nstanding in the “more pedestrian terms” used by Justice Scalia, “it is an answer to\n\nthe very first question that is sometimes rudely asked when one person complains\n\nof another’s actions: ‘What’s it to you?’” Antonin Scalia, The Doctrine of Standing\n\nas an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881,\n\n882 (1983). Amodeo lacks standing because the “it”—the partial vacatur—is\n\nnothing to him.\n\n Because Amodeo lacks standing, we must “dismiss this appeal regardless of\n\nwhether or not the district court possessed authority to vacate the [final] order[] of\n\nforfeiture.” United States v. Cone, 627 F.3d 1356, 1359 (11th Cir. 2010). Amodeo\n\nprotests that it would be perverse if the district court could enter an order without\n\njurisdiction and with no possibility of review, but the authority of the district court\n\ncan be litigated in a case or controversy between parties who—unlike Amodeo—\n\nhave a real interest in the effects of the partial vacatur, if any such parties exist.\n\nEven if they do not, the argument that if Amodeo “ha[s] no standing to sue, no one\n\nwould have standing, is not a reason to find standing.” Schlesinger v. Reservists\n\nComm. to Stop the War, 418 U.S. 208, 227 (1974). The assumption that “the\n\n\n\n 12\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 13 of 17\n\n\nbusiness of the federal courts is correcting . . . errors, and that ‘cases and\n\ncontroversies’ are at best merely convenient vehicles for doing so and at worst\n\nnuisances that may be dispensed with when they become obstacles to that\n\ntranscendent endeavor,” “has no place in our constitutional scheme.” Valley Forge\n\nChristian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S.\n\n464, 489 (1982). We are a court of limited jurisdiction, Kokkonen v. Guardian Life\n\nIns. Co. of Am., 511 U.S. 375, 377 (1994), and Article III of the Constitution does\n\nnot extend our jurisdiction to consider the question presented in this appeal.\n\n IV. CONCLUSION\n\n We DISMISS Amodeo’s appeal for lack of jurisdiction.\n\n\n\n\n 13\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 14 of 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369626/", "author_raw": "WILLIAM PRYOR, Circuit Judge:"}, {"author": "ROSENBAUM, Circuit Judge, concurring", "type": "concurrence", "text": "ROSENBAUM, Circuit Judge, concurring in the judgment:\n\n I agree that Frank Amodeo has no standing here. But I write separately\n\nbecause I respectfully disagree with the panel opinion’s conclusion that Article III\n\nstanding must always be determined first when more than one non-merits issue could\n\ndispose of a case. Rather, no unyielding jurisdictional hierarchy exists, and courts\n\nretain discretion to dispose of a case on any non-merits, threshold basis when no\n\nready answer to any such non-merits question is immediately obvious.\n\n The Supreme Court has explained that “a federal court has leeway to choose\n\namong threshold grounds for denying audience to a case on the merits.” (citations\n\nand quotation marks omitted). Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,\n\n549 U.S. 422, 431 (2007). “[T]here is no mandatory sequencing of jurisdictional\n\nissues.” Id. (citation and quotation marks omitted). For example, a federal court\n\nneed not establish subject-matter jurisdiction before dismissing for lack of personal\n\njurisdiction. Id. “Nor must a federal court decide whether the parties present an\n\nArticle III case or controversy before abstaining under [an abstention doctrine].” Id.\n\n In determining which non-merits issue to address, a court may properly\n\nconsider factors like “convenience, fairness, and judicial economy.” Id. at 432. So\n\nof course, if “a court can readily determine that it lacks jurisdiction over the cause\n\nor the defendant, the proper course would be to dismiss on that ground.” Id. at 436.\n\n\n\n\n 14\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 15 of 17\n\n\nBut at bottom, “[j]urisdiction is vital only if the court proposes to issue a judgment\n\non the merits.” Id. at 431 (citation and quotation marks omitted).\n\n This case raises two non-merits, jurisdictional 1 questions: whether Amodeo\n\nhas Article III standing and whether federal courts have subject-matter jurisdiction\n\nto partially vacate a final order of forfeiture in the circumstances of this case.\n\n On the issue of standing, the panel opinion attempts to distinguish between\n\nappellate and district-court jurisdiction. But even assuming, arguendo, that\n\nSinochem’s sequencing rules do not apply to jurisdictional issues unique to our\n\nappellate jurisdiction, the panel opinion forgets that Amodeo has the same basis for\n\nbeing heard by us as he had for being heard by the district court. No intervening\n\nchange affected Amodeo’s standing between the time the district court decided that\n\nhe had no standing and the time Amodeo appealed that ruling to us. Our jurisdiction\n\nin terms of standing turns on whether Amodeo had standing below, and if he did not,\n\nwe must dismiss the case for lack of jurisdiction. We therefore confront the same\n\njurisdictional question in terms of Article III standing that the district court did.\n\n Similarly, we also face the same jurisdictional question that the district court\n\ndid as to whether federal courts have power to grant the government’s requested\n\n\n\n\n1\n The fact that these are both non-merits questions is enough to give us discretion to take either\nquestion first, as “[j]urisdiction is vital only if the court proposes to issue a judgment on the\nmerits.” Sinochem, 549 U.S. at 431. It just so happens that both non-merits issues here are\njurisdictional.\n\n\n 15\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 16 of 17\n\n\npartial vacatur of the final order of forfeiture in this case. Because federal courts are\n\ncourts of limited subject-matter jurisdiction, we must always consider whether\n\nsubject-matter jurisdiction exists to grant a party’s requested relief. Thermoset Corp.\n\nv. Bldg. Materials Corp of Am., 849 F.3d 1313, 1316-17 (11th Cir. 2017). If we find\n\nthat the district court did not have jurisdiction to grant the government’s request, all\n\nwe can do is vacate the illegal order that the district court—and federal courts in\n\ngeneral—had no authority to enter and dismiss the case. Id. at 1321.\n\n In considering our jurisdiction, then, we face the same two threshold questions\n\nas did the district court. Under Sinochem, if no answer to either question is readily\n\napparent, we may exercise our discretion to address either issue first.\n\n Here, however, the answer to the standing question is immediately obvious.\n\nAmodeo cannot make a colorable claim that he has standing. In fact, we have\n\npreviously reached exactly this same conclusion in Amodeo’s case. In Amodeo’s\n\ndirect appeal from the final order of forfeiture, we unambiguously held that he lacked\n\nstanding because the preliminary order of forfeiture already “fully and finally\n\nresolved all of” Amodeo’s interests in the relevant properties—including the two\n\ncompanies at issue in this case. See United States v. Amodeo, No. 09-16170 (11th\n\nCir. Mar. 26, 2010). And even after the district court partially vacated the final order\n\nof forfeiture, we held that the preliminary order of forfeiture continued to govern, so\n\nAmodeo still had no interest in the two companies at issue here. Palaxar Grp. v.\n\n\n\n 16\n\n Case: 15-12643 Date Filed: 02/21/2019 Page: 17 of 17\n\n\nWilliams, 714 App’x 926, 928-29 & n.4 (11th Cir. 2017). In short, it is immediately\n\nobvious that Amodeo has no standing, and his appeal is properly dismissed on that\n\nbasis.\n\n Yet the panel opinion goes further and imposes mandatory sequencing of non-\n\nmerits issues by placing Article III standing unyieldingly before all other\n\njurisdictional questions. Majority Op. at 6 (“That this Court must first satisfy itself\n\nof our own jurisdiction is a rule without exception . . . .”). That contravenes\n\nSinochem’s clear directive that “there is no mandatory sequencing of jurisdictional\n\nissues.”2 Sinochem, 549 U.S. at 431 (citation and quotation marks omitted). And so\n\nI concur only in the panel opinion’s judgment.\n\n\n\n\n2\n To be clear, under Sinochem, if no obvious answer existed to either of the jurisdictional questions\nwe face today—if, say, Amodeo’s standing turned on complicated questions of fact, or if the legal\nanalysis for standing were mired in inter-Circuit splits—then we could first consider the question\nof the district court’s jurisdiction to grant the government’s requested relief. But as I have\ndescribed, as a matter of fact, that is not the case here.\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369626/", "author_raw": "ROSENBAUM, Circuit Judge, concurring"}]}	PRYOR	ROSENBAUM	MOORE	1	{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4592373/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,586,640	NATIONAL LIFELINE ASSOCIATION, Et Al., Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Oceti Sakowin Tribal Utility Authority, Intervenor	National Lifeline Association v. FCC	2019-02-01	18-1026; C/w 18-1080	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Rogers, Griffith, Randolph", "parties": "", "opinions": [{"author": "Opinion for the court filed by Circuit Judge ROGERS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 25, 2018 Decided February 1, 2019\n\n No. 18-1026\n\n NATIONAL LIFELINE ASSOCIATION, ET AL.,\n PETITIONERS\n\n v.\n\n FEDERAL COMMUNICATIONS COMMISSION AND UNITED\n STATES OF AMERICA,\n RESPONDENTS\n\n OCETI SAKOWIN TRIBAL UTILITY AUTHORITY,\n INTERVENOR\n\n\n Consolidated with 18-1080\n\n\n On Petitions for Review of an Order of\n the Federal Communications Commission\n\n\n John J. Heitmann argued the cause and filed the briefs for\npetitioners National Lifeline Association, et al.\n\n V. Shiva Goel argued the cause for petitioner Crow Creek\nSioux Tribe and intervenor Oceti Sakowin Tribal Utility\nAuthority. With him on the joint briefs were Christopher J.\nWright and John T. Nakahata.\n\f 2\n\n Thaila K. Sundaresan, Counsel, Federal Communications\nCommission, argued the cause for respondents. With her on\nthe brief were Robert B. Nicholson and Frances E. Marshall,\nAttorneys, U.S. Department of Justice, Thomas M. Johnson Jr.,\nGeneral Counsel, Federal Communications Commission,\nDavid M. Gossett, Deputy General Counsel, and Jacob M.\nLewis, Associate General Counsel. Richard K. Welch, Deputy\nAssistant General Counsel, Federal Communications\nCommission and William T. Shaw, Attorney Advisor, U.S.\nDepartment of Justice, entered appearances.\n\n Before: ROGERS and GRIFFITH, Circuit Judges, and\nRANDOLPH, Senior Circuit Judge.\n\n Opinion for the court filed by Circuit Judge ROGERS.\n\n ROGERS, Circuit Judge: Responding to Congressional\ndirectives, the Federal Communications Commission has\nadopted programs to make voice and broadband services more\navailable and affordable for low-income consumers by\nproviding a discount on these services through its Lifeline\nprogram. Since 1985, eligible low-income consumers may\nreceive a monthly discount of $9.25 on qualifying services, and\nsince 2000, low-income consumers living on Tribal lands may\nreceive an additional $25 per month for these services through\nthe Tribal Lifeline program in recognition of the additional\nhurdles to affordable telecommunications service on Tribal\nlands. In 2017, however, the Commission adopted two\nlimitations that petitioners challenge: First, it limited this\nenhanced Tribal Lifeline subsidy to services provided by\neligible telecommunications carriers that utilize their own fixed\nor mobile wireless facilities, excluding carriers that resell\nservices provided over other carriers’ facilities (“Tribal\nFacilities Requirement”). Second, it limited the enhanced\n\f 3\nTribal Lifeline subsidy to residents of “rural” areas on Tribal\nlands (“Tribal Rural Limitation”).\n\n For the following reasons, we grant the petitions for\nreview. The Commission’s adoption of these two limitations\nwas arbitrary and capricious by not providing a reasoned\nexplanation for its change of policy that is supported by record\nevidence. In adopting the Tribal Facilities Requirement, the\nCommission’s decision evinces no consideration of the exodus\nof facilities-based providers from the Tribal Lifeline program.\nNeither does it point to evidence that banning resellers from the\nTribal Lifeline program would promote network buildout. Nor\ndoes it analyze the impact of the facilities requirement on\nTribal residents who currently rely on wireless resellers.\nFurther, the Commission ignored that its decision is a\nfundamental change that adversely affects the access and\naffordability of service for residents of Tribal lands. Similarly,\nin adopting the Tribal Rural Limitation, the Commission’s\ndecision evinces no consideration of the impact on service\naccess and affordability. Its decision does not examine\nwireless deployment data related to services to which most\nTribal Lifeline recipients subscribe.\n\n Various non-harmless procedural deficiencies exist as\nwell. The Commission failed to provide an adequate\nopportunity for comment on the proposed limitations. For\ninstance, the 2017 supplemental notice of proposed rulemaking\nlacked key information needed for interested persons to\nanticipate that small towns below 10,000 in population would\nbe excluded. Because the Commission stated that it intended\nto address remaining Tribal issues in a future rulemaking,\npetitioners reasonably did not submit current data on\nabandonment of the Lifeline program by facilities-based\nproviders. Two weeks’ notice in the form of an unpublished\ndraft order was inadequate.\n\f 4\n\n I.\n\n In the Communications Act of 1934, Congress stated its\ngoal was to “make available, so far as possible, to all the people\nof the United States . . . a rapid, efficient, Nation-wide, and\nworld-wide wire and radio communication service with\nadequate facilities at reasonable charges.” 47 U.S.C. § 151.\nCongress reinforced this universal service goal in the\nTelecommunications Act of 1996, providing that “[q]uality\nservices should be available at just, reasonable, and affordable\nrates” and that “[c]onsumers in all regions of the Nation,\nincluding low-income consumers . . . should have access to\ntelecommunications and information services.” 47 U.S.C.\n§ 254(b)(1), (3) (“1996 Act”). The Commission has\nresponded, as relevant here, by adopting various iterations of\nthe Lifeline program. Some background is required to place\npetitioners’ current challenges in context.\n\n In 1985, the Commission created the Lifeline program to\nensure that low-income consumers had access to affordable,\nlandline telephone service following the divesture of AT&T.1\nRecognizing that “[a]ccess to telephone service has become\ncrucial to full participation in our society and economy” and\nthat “an increase in fixed charges for telephone service” could\n“cause a significant number of subscribers to cancel service,”\nthe Commission provided an offset of subscriber line charges\nfor low-income households. See 1985 Order, note 1, at 941–\n42. In 1997, still concerned “over the low subscribership levels\namong low-income consumers,” the Commission, in response\nto § 254 of the 1996 Act, transformed the Lifeline program into\n\n1\n MTS and WATS Market Structure; and Establishment of a\nJoint Board; Amendment, Report and Order, 50 Fed. Reg. 939\n(Jan. 8, 1985) (“1985 Order”).\n\f 5\na stand-alone universal service program “designed to make\nresidential service more affordable for low-income\nconsumers.”2\n\n The Lifeline program thus offers each eligible low-income\nhousehold a baseline monthly discount of $9.25 to offset the\ncosts of a wireline or wireless voice and broadband service\nplan. 47 C.F.R. § 54.403(a)(1). Lifeline service may be\nprovided only by eligible telecommunications carriers\n(“ETCs”), which are either certified by state public service\ncommissions or designated by the Commission. 47 U.S.C.\n§ 214(e)(2), (6). The discount is provided as a subsidy to these\nETCs, which in turn pass through the subsidy to provide their\nservices to low-income consumers at reduced costs. 47 C.F.R.\n§ 54.403(a)(1). The ETCs may allow eligible low-income\nconsumers, as defined by § 54.409, to apply their discount to\nany service plan meeting certain minimum service standards.\nId. § 54.401(b).\n\n In 2000, the Commission established the Tribal Lifeline\nprogram to provide an enhanced monthly subsidy of $25 for\nresidents of federally recognized Tribal lands.3 See 47 C.F.R.\n§ 54.403(a)(3). There was a “need for immediate Commission\naction to promote the deployment of telecommunications\nfacilities in tribal areas and to provide the support necessary to\nincrease subscribership . . . for the benefit of those living on”\nTribal lands. 2000 Tribal Lifeline Order, note 3, ¶ 5. At that\ntime, statistics showed that households on reservations and\n\n2\n Federal-State Joint Board on Universal Service, Report and\nOrder, 12 FCC Rcd. 8776, ¶¶ 346, 406 (1997) (“1997 Order”).\n3\n Federal-State Joint Board on Universal Service et al.,\nTwelfth Report and Order, 15 FCC Rcd. 12208, ¶¶ 5, 13 (2000)\n(“2000 Tribal Lifeline Order”).\n\f 6\nother Tribal lands had the lowest reported telephone\nsubscribership levels in the nation. Id. ¶¶ 5, 26. The\nCommission recognized that the critical lack of access to\ntelecommunications services on Tribal lands threatened\nTribes’ access to no less than “education, commerce,\ngovernment, and public services” and therefore their “tribal\nsovereignty and self-governance.” Id. ¶ 23.\n\n The Commission’s “primary goal” in adopting the\nenhanced subsidy was to “reduce the monthly cost of\ntelecommunications services for qualifying low-income\nindividuals on tribal lands, so as to encourage those without\nservice to initiate service and better enable those currently\nsubscribed to maintain service.” Id. ¶ 44. It determined that a\n“substantial additional amount of support” was necessary to\nincrease subscribership in view of “(1) the extraordinarily low\naverage per capita and household incomes in tribal areas,\n(2) the excessive toll charges that many subscribers incur as a\nresult of limited local calling areas on tribal lands, (3) the\ndisproportionately low subscribership levels in tribal areas, and\n(4) the apparent limited awareness of, and participation in, the\nexisting Lifeline program.” Id. Three secondary benefits of\nthe enhanced Tribal subsidy were: (1) encouraging deployment\nof telecommunications facilities on Tribal lands that currently\nlack such facilities, (2) spurring competition from new entrants\noffering alternative technologies, and (3) reducing barriers to\nincreased penetration that are caused by limited local calling\nareas. Id. ¶¶ 52–58.\n\n Prior to adopting the enhanced Tribal subsidy, the\nCommission had consulted various Tribal leaders in formal\nfield hearings, Commissioner-level meetings, and informal\nmeetings. The Commission then “reaffirm[ed] . . . principles\nof Tribal Sovereignty and the Federal Trust Responsibility,”\nand committed going forward, “to the extent practicable, [to]\n\f 7\nconsult with Tribal governments prior to implementing any\nregulatory action or policy that will significantly or uniquely\naffect Tribal governments, their land and resources.”4 The\nCommission also agreed to streamline processes and\nprocedures placing “undue burdens” on Indian Tribes. Tribal\nPolicy Statement, note 4, at 4082 ¶ 4.\n\n To keep pace with various market forces resulting in the\nphase out by major carriers from the Lifeline program, the\nCommission decided to allow non-facilities-based providers\n(or “wireless resellers”) to provide Lifeline services, beginning\nin 2005. Under the 1996 Act, an ETC must “offer the services\nthat are supported by Federal universal service support\nmechanisms” “either using its own facilities or a combination\nof its own facilities and resale of another carrier’s services.” 47\nU.S.C. § 214(e)(1). Since 1997, the Commission had\ninterpreted “own facilities” to mean that non-facilities-based\nproviders, who purchased telecommunications service\nwholesale from other carriers that owned the facilities and then\nresold it to consumers, were ineligible for Lifeline support.\nOtherwise, wireline resellers would be able to “double\nrecover,” once through the universal service subsidy and again\nthrough subsidized wholesale rates. See 1997 Order, note 2,\n¶ 161. In 2005, the Commission concluded the “own facilities”\nrequirement met the 1996 Act’s criteria for forbearance, and\nexcused TracFone, a non-facilities-based provider, from this\nrequirement.5 Addressing the three forbearance factors in 47\n\n\n4\n Statement of Policy on Establishing a Government-to-\nGovernment Relationship with Indian Tribes, Policy\nStatement, 16 FCC Rcd. 4078, 4080, 4081 ¶ 2 (2000) (“Tribal\nPolicy Statement”).\n5\n Petition of TracFone Wireless, Inc. for Forbearance from 47\nU.S.C. § 214(e)(1)(A) and 47 C.F.R. § 54.201(i), Order, 20\n\f 8\nU.S.C. § 160(a), the Commission found (1) the “own facilities”\nrequirement was unnecessary to achieve the Lifeline program’s\npurposes because there is no double recovery as wireless\nresellers’ rates are not subsidized, 2005 Forbearance Order,\nnote 5, ¶¶ 11–12; (2) the requirement was unnecessary to\nprotect consumers, and forbearance would benefit consumers\nby offering them previously unavailable choice of providers,\nid. ¶ 15; and (3) forbearance was in the public interest because\nit would expand eligible participation in the program, id. ¶ 24.\nThe Commission observed that only “one-third of [Lifeline-\neligible] households” subscribed to Lifeline services and\npredicted that allowing non-facilities-based providers like\nTracFone to participate “should expand participation of\nqualifying consumers.” Id.\n\n The Commission used the same rationale to extend “own\nfacilities” forbearance to other ETCs.6 And in 2012, the\nCommission adopted forbearance from the “own facilities”\nrequirement for all non-facilities-based providers.7\nConsequently, as a result of the Commission’s blanket\nforbearance, resellers play a critical role in the Lifeline\nprogram: by 2015, approximately two-thirds of eligible low-\nincome consumers on Tribal lands relied on non-facilities-\nbased providers for their Lifeline services.\n\nFCC Rcd. 15095, 15100 ¶ 9 (2005) (“2005 Forbearance\nOrder”).\n6\n See Virgin Mobile USA, L.P. Petition for Forbearance from\n47 U.S.C. § 214(e)(1)(A) et al., Order, 24 FCC Rcd. 3381,\n¶¶ 19–21 (2009); i-Wireless, LLC Petition for Forbearance\nfrom 47 U.S.C. § 214(e)(1)(A) et al., Order, 25 FCC Rcd. 8784,\n¶ 7 (2010).\n7\n Lifeline and Link Up Reform and Modernization et al., Report\nand Order and Further Notice of Proposed Rulemaking, 27\nFCC Rcd. 6656, ¶ 368 (2012) (“2012 Lifeline Reform Order”).\n\f 9\n\n Beginning in 2012, the Commission also emphasized the\nneed to comprehensively improve and modernize Lifeline\noperations. 2012 Lifeline Reform Order, note 7, ¶ 2.\nExpenditures for the Lifeline program had increased\nsubstantially, from $582 million in 1998 to $2.4 billion in 2012.\nId. ¶ 23. To “constrain the growth of the program in order to\nreduce the burden on all who contribute to the Universal\nService Fund,” id. ¶ 1, the Commission adopted reforms to\neliminate waste, fraud, and abuse in the program, establishing,\namong other things, national eligibility criteria, certification\nrequirements, and independent audit requirements on certain\nlarger carriers. Id. ¶ 4.\n\n Then, on June 22, 2015, the Commission initiated a\nproceeding to achieve “a fundamental, comprehensive\nrestructuring of the program.”8 The Commission sought\ncomment on proposals to change the Lifeline and Tribal\nLifeline programs, including whether to “limit enhanced Tribal\nLifeline and Link Up support only to those Lifeline providers\nwho have facilities,” 2015 Lifeline Second FNPRM, note 8,\n¶ 167, and whether to “focus enhanced Tribal support to those\nTribal areas with lower population densities,” id. ¶¶ 169–70.\nThe Commission made substantial changes to the Lifeline\nprogram in April 2016 but did not change the Tribal Lifeline\nprogram.9 For example, the Commission established minimum\n\n\n8\n Lifeline and Link Up Reform and Modernization et al.,\nSecond Further Notice of Proposed Rulemaking, Order on\nReconsideration, Second Report and Order, and Memorandum\nOpinion and Order, 30 FCC Rcd. 7818, 7824 (2015) (“2015\nLifeline Second FNPRM”).\n9\n Lifeline and Link Up Reform and Modernization et al., Third\nReport and Order, Further Report and Order, and Order on\n\f 10\nservice standards for broadband and mobile voice services,\ncreated a National Verifier program to ensure only eligible\nsubscribers may enroll in Lifeline support, and encouraged the\nentry of new broadband providers into the Lifeline program.\n2016 Lifeline Modernization Order, note 9, ¶¶ 6–8. The\nCommission recognized that like telephone service in previous\ngenerations, broadband Internet service “has evolved into the\nessential communications medium of the digital economy.” Id.\n¶ 12. It decided to “maintain the current set of Tribal-specific\neligibility programs,” “agree[ing] with commenters” that\n“there is much more progress to be made in increasing\npenetration and adoption of Lifeline services.” Id. ¶ 205. Of\nsignificance, the Commission also stated that certain Tribal\nLifeline eligibility issues it had raised in the 2015 Lifeline\nSecond FNPRM, including the proposed facilities requirement\nand rural limitation, would “remain open for consideration in a\nfuture proceeding more comprehensively focused on\nadvancing broadband deployment on Tribal lands.” Id. ¶ 211\n& nn. 570–71.\n\n On October 26, 2017, the Commission released a draft\norder adopting a facilities requirement and rural limitation for\nthe Tribal Lifeline program.10 Some comments were submitted\nto the Commission. A public notice of November 9, 2017\nannounced the beginning of the Sunshine Period and prohibited\ninterested persons from lobbying the Commission. See 47\nC.F.R. § 1.1200. A week later, on November 16, 2017, the\n\nReconsideration, 31 FCC Rcd. 3962, ¶¶ 205–11 (2016) (“2016\nLifeline Modernization Order”).\n10\n See FCC Fact Sheet: Bridging the Digital Divide for Low-\nIncome Consumers, Fourth Report and Order, Order on\nReconsideration, Memorandum Opinion and Order, Notice of\nProposed Rulemaking, and Notice of Inquiry, FCC-CIRC\n1711-05 (Oct. 26, 2017).\n\f 11\nCommission voted 3-2 in favor of the draft 2017 Order with\nsome modifications.11 In the 2017 Lifeline Order, the\nCommission adopted two limitations that petitioners challenge.\n\n First, the Tribal Facilities Requirement limits enhanced\nTribal Lifeline support to “fixed or mobile wireless facilities-\nbased Lifeline service provided on Tribal lands with wireless\nnetwork facilities covering all or a portion of the relevant\nLifeline ETC’s service area on Tribal lands.” 2017 Lifeline\nOrder, note 11, ¶ 24. To possess “facilities” for purposes of\nthe enhanced subsidy, “a mobile wireless provider must hold\nusage rights under a spectrum license or a long-term spectrum\nleasing arrangement along with wireless network facilities that\ncan be used to provide wireless voice and broadband services.”\nId. “If an ETC offers service using its own as well as others’\nfacilities in its service area on rural Tribal lands, it may only\nreceive enhanced support for the customers it serves using its\nown last-mile facilities.” Id. ¶ 26. The Commission stated that\nthe Tribal Facilities Requirement “will focus the enhanced\nsupport toward those providers directly investing in voice- and\nbroadband-capable networks” on Tribal lands, ensuring that\nTribal Lifeline payments “will be reinvested in the ‘provision,\nmaintenance, and upgrading’ of facilities” in Tribal areas. Id.\n¶ 27.\n\n Second, the Tribal Rural Limitation limits enhanced Tribal\nLifeline support to residents of “rural” areas on Tribal lands.\nId. ¶ 3. It adopts the definitions of “rural” and “urban” used in\n\n11\n Bridging the Digital Divide for Low-Income Consumers et\nal., Fourth Report and Order, Order on Reconsideration,\nMemorandum Opinion and Order, Notice of Proposed\nRulemaking, and Notice of Inquiry, 32 FCC Rcd. 10475\n(released Dec. 1, 2017) (“2017 Lifeline Order”), 83 Fed. Reg.\n2075 (Jan. 16, 2016).\n\f 12\nthe Commission’s Schools and Libraries Program (“E-Rate”),\nwhich defines “urban” as “an urbanized area or urban cluster\narea with a population equal to or greater than 25,000,” and\n“rural” as any area that is not “urban,” 47 C.F.R.\n§ 54.505(b)(3). 2017 Lifeline Order, note 11, ¶ 5. The\nCommission stated that providing enhanced Lifeline support in\n“more densely populated Tribal lands” was “inconsistent with\nthe Commission’s primary purpose of the enhanced support,”\nobserving approximately 98% of people living in urban areas\nin the United States have access to fixed broadband Internet.\nId. ¶ 9.\n\n Timely petitions for review were filed. Following denial\nof a stay by the Commission, the court granted petitioners’\nmotion for a judicial stay, concluding “[p]etitioners have\ndemonstrated a likelihood of success on the merits of their\narguments that the facilities-based and rural areas\nlimitations . . . are arbitrary and capricious.” Nos. 18-1026,\n18-1080, Order, at 2 (D.C. Cir. Aug. 10, 2018).\n\n II.\n\n Petitioners challenge the 2017 Lifeline Order, contending\nthat both the Tribal Facilities Requirement and Tribal Rural\nLimitation are arbitrary and capricious because the\nCommission failed to consider several key issues, such as the\nimpact of its action on service access and affordability.\nPetitioners also contend the Commission failed to provide\nsufficient notice of the proposed changes, and to initiate, as it\nstated it would, a new notice-and-comment rulemaking before\nadopting these changes to the Tribal Lifeline program.\nPetitioners further contend the Commission violated its own\nprocedural requirements by failing to consult Indian tribes in\nadvance.\n\f 13\n Under the Administrative Procedure Act, the reviewing\ncourt “shall . . . hold unlawful and set aside agency action . . .\nfound to be . . . arbitrary, capricious, an abuse of discretion, or\notherwise not in accordance with law.” 5 U.S.C. § 706(2). The\nagency must “articulate a satisfactory explanation for its action\nincluding a rational connection between the facts found and the\nchoice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.\nAuto. Ins. Co., 463 U.S. 29, 43 (1983). Agency action is\narbitrary and capricious if the agency “has relied on factors\nwhich Congress has not intended it to consider, entirely failed\nto consider an important aspect of the problem, offered an\nexplanation for its decision that runs counter to the evidence\nbefore the agency, or is so implausible that it could not be\nascribed to a difference in view or the product of agency\nexpertise.” Id. Of course, “[a]gencies are free to change their\nexisting policies as long as they provide a reasoned explanation\nfor the change.” Encino Motorcars, LLC v. Navarro, 136 S.\nCt. 2117, 2125 (2016) (citing Nat’l Cable & Telecomms. Ass’n\nv. Brand X Internet Servs., 545 U.S. 967, 981–82 (2005)).\n\n Although the court’s review entails a “narrow” standard of\nreview, “an agency [must] ‘examine the relevant data and\narticulate a satisfactory explanation for its action.’” FCC v.\nFox Television Stations, Inc., 556 U.S. 502, 513 (2009)\n(quoting State Farm, 463 U.S. at 43). This same standard\napplies when an agency changes its prior policy. See id. But\nthe new policy must be permissible under the statute, and the\nagency must acknowledge it is changing its policy and show\nthat “there are good reasons” for the new policy and “that the\nagency believes it to be better, which the conscious change of\ncourse adequately indicates.” Id. at 515. An agency cannot\nignore its prior factual findings that contradict its new policy\nnor ignore reliance interests. Id. at 515–16. “[A] reasoned\nexplanation is needed for disregarding facts and circumstances\nthat underlay or were engendered by the prior policy.” Id. at\n\f 14\n516. This court has thus understood its role to be confined “to\nensur[ing] that the [agency] engaged in reasoned\ndecisionmaking,” Farmers Union Cent. Exch., Inc. v. FERC,\n734 F.2d 1486, 1500 (D.C. Cir. 1984), after a “searching and\ncareful inquiry” of the record, Mississippi v. EPA, 744 F.3d\n1334, 1342 (D.C. Cir. 2013). The agency’s substantive\ndecision must be supported by “substantial evidence” in the\nadministrative record. Comcast Corp. v. FCC, 579 F.3d 1, 5,\n7 (D.C. Cir. 2009).\n\n A.\n Congress established in the 1996 Act the principles\nunderlying the universal service program as making “[q]uality\nservices” “available at just, reasonable, and affordable rates.”\n47 U.S.C. § 254(b)(1). Since at least 2000, the Commission\nhas articulated the “primary goal” of the enhanced Tribal\nsubsidy as “reduc[ing] the monthly cost of telecommunications\nservices for qualifying low-income individuals on tribal lands,\nso as to encourage those without service to initiate service and\nbetter enable those currently subscribed to maintain service.”\n2000 Tribal Lifeline Order, note 3, ¶ 44. Although the\nCommission has recognized the importance of encouraging\ninfrastructure development, id. ¶¶ 52–55, the Commission’s\nlong-stated primary tenets for the program are availability and\naffordability. The Commission adopted the enhanced Tribal\nsubsidy specifically for the purpose of increasing\n“subscribership” in view of the financial obstacles facing\nTribal participation. See id. ¶ 44. The Commission reaffirmed\nthis understanding of Tribal Lifeline’s purpose in 2012, stating\nthat the Tribal Lifeline program was a “direct response to the\ndisproportionately low subscribership to telecommunications\nservices among Tribal communities at the time.” 2012 Lifeline\nReform Order, note 7, ¶ 150. Yet in 2017, the Commission\nignored the substantial impact of these changes on affordability\nand access. See, e.g., 2017 Lifeline Order, note 11, ¶ 24. While\n\f 15\nacknowledging that Lifeline funds disbursed to resellers\n“w[ould] still lower the cost of the consumer’s service,” id.\n¶ 23, the Commission explained the Tribal Facilities\nRequirement on the basis that these funds “cannot directly\nsupport the provider’s network because the provider does not\nhave one,” id. This fails to consider the impact of the change\non the Lifeline subsidy’s “primary purpose” or otherwise\nexplain how it is compatible with that purpose.\n\n The Commission also failed to justify its fundamental\npolicy reversal on forbearing the “own facilities” requirement\nin light of its previous findings regarding the important role of\nnon-facilities-based providers in promoting affordable\ntelecommunications service. For thirteen years, the\nCommission forbore from enforcing the “own facilities”\nrequirement based on finding that “the facilities requirement\nimpedes greater utilization of Lifeline-supported services\nprovided by a pure wireless reseller,” 2005 Forbearance\nOrder, note 5, ¶ 9, and that making non-facilities-based\nproviders eligible would increase access to affordable services,\nid. ¶¶ 13, 24. The Commission had found that because Lifeline\nsupport to wireless carriers is customer-specific, its previous\nconcern that resellers might receive a double recovery did not\napply. Id. ¶ 12. The Commission also found that forbearance\nwould “benefit consumers” because low-income consumers\nwould have “a choice of providers not available to such\nconsumers today for accessing telecommunications services.”\nId. ¶ 15. Yet in 2017, the Commission rescinded its policy of\nforbearance as to the Tribal Lifeline program without\nconducting a new forbearance analysis or providing any\nreasoned explanation for its reversal. See generally 2017\nLifeline Order, note 11, ¶¶ 21–30. Even on appeal, the\nCommission does not acknowledge the policy reversal on the\nenhanced subsidy, which made reselling attractive\neconomically, instead maintaining that non-facilities-based\n\f 16\nproviders can still participate as Lifeline providers; they are\njust limited to the baseline monthly subsidy of $9.25. Resp’t’s\nBr. 54. The Commission never explained why its previous\nforbearance findings no longer applied. Although the\nCommission sought comment on whether it should reverse the\nforbearance findings, it made no new findings with regard to\nforbearance of the “own facilities” requirement for the\nenhanced subsidy. 2017 Lifeline Order, note 11, ¶¶ 69–79. Its\nreference in its notice of proposed rulemaking to major\nCommission actions for “waste, fraud, and abuse” against\nresellers, see id. ¶ 68, can provide no justification for the Tribal\nFacilities Requirement absent evidence that a substantial\nportion of the two-thirds of services supplied by non-facilities-\nbased providers are, in fact, fraudulent or wasteful, and the\nCommission pointed to none.\n\n The Commission also “failed to consider . . . important\naspect[s] of the problem” in adopting the Tribal Facilities\nRequirement. State Farm, 463 U.S. at 43. First, the\nCommission’s decision does not indicate consideration of\nfacilities-based providers’ unwillingness to offer Tribal\nLifeline services. Numerous commenters explained that the\nmajor facilities-based providers — AT&T, T-Mobile, and\nVerizon — have relinquished their Lifeline eligibility\naltogether, and despite maintaining Lifeline eligibility, Sprint\nalso does not offer any Tribal Lifeline services.12 The\n\n12\n See, e.g., Lifeline and Link Up Reform and Modernization et\nal., Comments of Navajo Nation Telecommunications\nRegulatory Commission, 10 (Aug. 28, 2015) (“Navajo Nation\nComments”); Lifeline and Link Up Reform and Modernization\net al., Comments of Assist Wireless, LLC & Easy Telephone\nServices Co., 18–19 (Aug. 31, 2015); Lifeline and Link Up\nReform and Modernization et al., Comments of AT&T, 5–6 &\nn.10 (Aug. 31, 2015); Lifeline and Link Up Reform and\n\f 17\nstatement of a dissenting Commission Member also makes\nclear the Commission knew that the major facilities-based\nproviders were uninterested in providing Tribal Lifeline\nservices yet failed to address the problem that would be created\nas a result of changing its policy. For thirteen years, the\nCommission had justified forbearance in part based on the\nability of non-facilities-based providers to offer minimum\nservices at competitive rates by purchasing facilities-based\nproviders’ services wholesale and then reselling them. See\n2012 Lifeline Reform Order, note 7, ¶ 371. By 2015, the\nCommission reported “two-thirds of enhanced Tribal support\ngoes to non-facilities-based providers, and it is unclear whether\nthe support is being used to deploy facilities in Tribal areas,”\nstill thereby suggesting that eligible consumers relied on non-\nfacilities-based providers for their telecommunications\nservices. 2017 Lifeline Order, note 11, ¶ 23. This reliance\nexists because non-facilities-based providers can efficiently\nreach the low-income population with targeted service plans\nand because the largest facilities-based providers are unwilling\nto participate in a program that is unprofitable for them.13\n\nModernization et al., Comments of the Oglala Sioux Tribe\nUtility Commission, Attachment, 3 (Aug. 31, 2015); Lifeline\nand Link Up Reform and Modernization et al., Crow Creek\nSioux Tribal Resolution, 1 (June 1, 2017); Lifeline and Link Up\nReform and Modernization et al., Assist Wireless, LLC,\nBoomerang Wireless, LLC, and Easy Telephone Services Co.\nWritten Ex Parte Presentation, 5 (Nov. 9, 2017) (“Assist Ex\nParte”).\n13\n See Implementation of Section 6002(b) of the Omnibus\nBudget Reconciliation Act of 1993 et al., Eleventh Report, 21\nFCC Rcd. 10947, ¶ 28 (2006); Lifeline and Link Up Reform\nand Modernization et al., Reply Comments of Boomerang\nWireless, LLC, 4 (Sept. 30, 2015) (“Boomerang Reply\nComments”); Bridging the Digital Divide for Low-Income\n\f 18\n\n Second, the Commission’s decision does not indicate that\nit considered the effect of eliminating the enhanced subsidy for\nnon-facilities-based providers, namely that many low-income\nconsumers on Tribal lands will lose access to affordable\ntelecommunications service. Commenters explained that\nbecause certain areas have no facilities-based provider willing\nto provide Lifeline service, removing the enhanced subsidy\nfrom non-facilities-based providers will make those services\nunavailable to consumers.14 The Commission was aware that\ntwo-thirds of enhanced Tribal support goes to non-facilities-\nbased providers, see 2017 Lifeline Order, note 11, ¶ 23, yet\nnever appears to address what would happen to these\nconsumers when the subsidy was removed. Instead, the\nCommission summarily “conclude[d] that providing the\nenhanced support to Lifeline providers deploying, building,\nand maintaining critical last mile infrastructure is a more\nappropriate way to support the expansion of voice- and\nbroadband-capable networks on Tribal lands.” Id. ¶ 28.\nAlthough the court must “give appropriate deference to\npredictive judgments” by an agency where supported by\n“[s]ubstantial evidence,” Time Warner Entm’t Co. v. FCC, 240\nF.3d 1126, 1133 (D.C. Cir. 2001), the Commission referred to\nno evidence that facilities-based providers will make up the gap\nin services when non-facilities-based providers are ineligible to\nreceive the enhanced Tribal subsidy.\n\n Third, the Commission pointed to no record evidence that\ndirecting the enhanced Tribal subsidy solely to facilities-based\nproviders would incentivize them to deploy additional facilities\n\nConsumers et al., Letter from CTIA to FCC, 3–4 (Nov. 8,\n2017).\n14\n See, e.g., Boomerang Reply Comments, note 13, at 6; Assist\nEx Parte, note 12, at 5.\n\f 19\nand networks, reduce prices, or offer new service plans for low-\nincome consumers. See 2017 Lifeline Order, note 11, ¶ 27.\nComments that the Commission points to in its brief on appeal,\nsee Resp’t’s Br. 49–50, do not show how limiting the enhanced\nsubsidy to facilities-based providers will increase network\nbuildout, much less do so in areas where there is no facilities-\nbased provider participating in the Tribal Lifeline program that\ncould receive the enhanced subsidy. Further, the Commission\ndid not meaningfully address comments and evidence that\nundercut its conclusion, such as economic analysis in the\nrecord indicating that subsidizing non-facilities-based\nsubscribership also supports network buildout.15 Commenters\nnoted that “[f]acilities-based and non-facilities-based\ncarriers . . . operate symbiotically” and that “[t]he result of this\nrelationship is enhanced capacity utilization and hence more\ninvestment than would happen in the absence of [non-facilities-\nbased carriers].”16 The Commission has recognized in other\ncontexts that facilities-based providers may contract with\nresellers “when the [wireless reseller] has better access to some\nmarket segments than the host facilities-based service\nprovider” and when the reseller “can better target specific\nmarket segments, such as low-income consumers or consumers\nwith lower data-usage needs.”17\n\n Fourth, the Commission ignored “serious reliance\ninterests” engendered by its policy of forbearance. See Fox\n\n15\n See Assist Ex Parte, note 12, at 8–9; see also Bridging the\nDigital Divide for Low-Income Consumers et al., Comments of\nCTIA, 15 (Feb. 21, 2018) (“CTIA Comments”).\n16\n CTIA Comments, Declaration of John Mayo, ¶ 7 (Feb. 19,\n2018).\n17\n Implementation of Section 6002(b) of the Omnibus Budget\nReconciliation Act of 1993 et al., Twentieth Report, 32 FCC\nRcd. 8968, ¶ 15 (2017).\n\f 20\nTelevision, 556 U.S. at 515. As in Encino Motorcars, 136 S.\nCt. at 2126, the Commission’s decision does not take into\naccount the reliance interests of both the non-facilities-based\nproviders that had crafted business models and invested\nsignificant resources into providing Lifeline service, and the\ntwo-thirds of subscribers relying on non-facilities-based\nproviders for their telecommunications service. The\nCommission neither attempted to estimate the number of\nconsumers who would be unable to afford service without the\nenhanced subsidy or would lose access to service altogether\nwhen non-facilities-based providers discontinued their plans,\nnor did it consider alternatives to ensure coverage for these\nconsumers or respond to these objections. The dissenting\nCommissioner raised these concerns, and an agency has an\nobligation to consider an alternative or objection raised by a\ndissenting Commissioner that was “neither frivolous nor out of\nbounds.” Chamber of Commerce v. SEC, 412 F.3d 133, 144–\n45 (D.C. Cir. 2005). After the draft 2017 Order was released,\nETCs filed data showing that approximately 75% of Tribal\nLifeline customers could not afford to pay the additional $25\nper month. Comments also indicated that non-facilities-based\nproviders have developed a business model based on “buying\nlarge blocks of minutes from the major carriers and then\nreselling those minutes as Lifeline packages,” thereby\ndepending upon the enhanced subsidy to enable significant\nnumbers of low-income consumers to subscribe to their prepaid\nor minimal service plans. See Navajo Nation Comments, note\n12, at 10.\n\n By departing from its prior forbearance policy without\nreasoned explanation and failing to consider key aspects of the\nprogram — e.g., facilities-based providers’ unwillingness to\noffer Tribal Lifeline services, the effect of eliminating the\nenhanced Tribal subsidy on access and affordability, the effect\nof directing the subsidy only to facilities-based providers on\n\f 21\nnetwork buildout, and the reliance interests of these carriers\nand their consumers — the Commission’s adoption of the\nTribal Facilities Requirement was arbitrary and capricious. See\nState Farm, 463 U.S. at 43. In view of these failures by the\nCommission, the court need not address petitioners’\ncontentions that the Tribal Facilities Requirement violates\nsections 10, 214, and 254 of the 1996 Act.\n\n B.\n The Commission also did not consider the impact of its\nTribal Rural Limitation on service access and affordability.\nAlthough referring to the general disparity between urban and\nrural areas in the United States in terms of telecommunications\ninfrastructure, see 2017 Lifeline Order, note 11, ¶ 3, the\nCommission pointed to no record evidence that\ntelecommunications services are more available or more\naffordable for low-income consumers on urban Tribal lands\nthan on rural Tribal lands, such that the enhanced subsidy\nwould be less necessary in urban areas for furthering the\nLifeline program’s primary goals of access and affordability.\nSee id. ¶¶ 3–9. Even with a developed infrastructure of\nnetwork services in urban areas, low-income consumers may\nstill be unable to afford those services without the enhanced\nTribal subsidy. The Commission failed to refer to any data\nconsidering the relevant impacts on service access and\naffordability.\n\n The Commission also failed to refer to data considering\nthe impact of its Tribal Rural Limitation on incentivizing\ninfrastructure deployment. The Commission referred to the\ndeployment data only for fixed voice and broadband service.\nSee 2017 Lifeline Order, note 11, ¶ 9. It did not show that it\nexamined deployment data for the wireless services, to which\nthe vast majority of Tribal Lifeline recipients subscribe. See\n\f 22\nid. ¶ 23.18 The Commission’s conclusion that limiting the\nenhanced Tribal subsidy to rural lands will incentivize\ndeployment is thus speculative. By failing to “examine the\nrelevant data,” the Commission’s adoption of the Tribal Rural\nLimitation was arbitrary and capricious. NTCH, Inc. v. FCC,\n841 F.3d 497, 502 (D.C. Cir. 2016) (quoting State Farm, 463\nU.S. at 43).\n\n III.\n\n Petitioners challenge the 2017 Lifeline Order on\nprocedural grounds as well. An agency’s substantive rules are\nsubject to the requirements of notice-and-comment rulemaking\nunder the APA. Mendoza v. Perez, 754 F.3d 1002, 1020–21\n(D.C. Cir. 2014). To meet the rulemaking requirements of\nsection 553 of the APA, an agency “must provide sufficient\nfactual detail and rationale for the rule to permit interested\nparties to comment meaningfully.” Florida Power & Light Co.\nv. United States, 846 F.2d 765, 771 (D.C. Cir. 1988). After\npublishing notice in the Federal Register of “the terms or\nsubstance of the proposed rule or a description of the subjects\nand issues involved,” the agency “shall give interested persons\nan opportunity to participate in the rule making through\nsubmission of written data, views, or arguments.” 5 U.S.C\n§ 553(b), (c). For notice to be sufficient, the final rule must be\n“a logical outgrowth” of the proposed rule in the sense that the\noriginal notice must “adequately frame the subjects for\ndiscussion.” Omnipoint Corp. v. FCC, 78 F.3d 620, 631 (D.C.\nCir. 1996). Put otherwise, “the affected party ‘should have\n\n18\n See also, e.g., Lifeline and Link Up Reform and\nModernization et al., Comments of Assist Wireless, LLC and\nEasy Telephone Service Co., 2 (Aug. 31, 2015); Lifeline and\nLink Up Reform and Modernization et al., Comments of\nBoomerang Wireless, LLC, 6–9 (Aug. 31, 2015).\n\f 23\nanticipated’ the agency’s final course in light of the initial\nnotice.” Covad Commc’ns Co. v. FCC, 450 F.3d 528, 548\n(D.C. Cir. 2006). A reviewing court is to take “due\naccount . . . of the rule of prejudicial error.” 5 U.S.C. § 706.\n\n A.\n Petitioners maintain that the Tribal Rural Limitation is not\na “logical outgrowth” of the Commission’s proposal in the\n2015 Lifeline Second FNPRM. That proposal called for using\nthe Department of Agriculture’s rule excluding towns or cities\nwith populations greater than 10,000. The final rule excludes\n“urbanized areas” and “urban clusters” with populations\ngreater than 25,000; in effect, this definition can and does\nexclude some small towns of significantly less than 25,000 or\neven 10,000 people (despite contrary terms in the proposed\nrule).19 The Commission sought comment on several\npopulation-density-based definitions for “rural” lands, but\nneither the adopted E-Rate definition nor the “urban cluster”\nmethodology was mentioned in the notice.\n\n Although agency notice need not predict “the exact result\nreached after a notice and comment rulemaking,” Pub. Serv.\nComm’n v. FCC, 906 F.2d 713, 717 (D.C. Cir. 1990),\ncomments on the draft 2017 Order indicated the Commission’s\nproposed and final rules were unclear in scope. The\nCommission failed to provide the searchable maps or digital\n“shapefiles,” so that at least affected persons could determine\nthe impact of the rule, until after the final rule was published.\nSee 2017 Lifeline Order, note 11, ¶ 15. Insofar as the maps\nwere necessary to appreciate that even some towns with\npopulations under 10,000 people (contrary to the\nCommission’s original proposal of excluding towns above\n\n19\n See Shapefile of Rural Tribal Lands, https://www.usac.org/\nli/tools/reference-area.aspx.\n\f 24\n10,000 people) would be excluded from the enhanced subsidy\nunder the “urban cluster” methodology, the 2015 Lifeline\nSecond FNPRM was inadequate to enable sufficient comment\non the proposed rule, much less allow an understanding of the\neffect of the final rule.\n\n B.\n The Commission also improperly adopted the two\nchallenged limitations without commencing a new notice-and-\ncomment-rulemaking proceeding as it had promised. The\nCommission does not contest that the Tribal Facilities\nRequirement and Tribal Rural Limitation are substantive\nchanges in the regulations that required a new notice-and-\ncomment-rulemaking proceeding. Mendoza, 754 F.3d at\n1020–21. Instead, it maintains that it provided all the\nproceeding it had promised when it proposed the changes in\n2015 and kept the docket open for comments after issuing the\n2016 Lifeline Modernization Order. See Resp’t’s Br. 30–31.\n\n Although an agency may be able to issue multiple orders\nbased on a single notice-and-comment rulemaking, the\nCommission stated it would address any remaining Tribal\nissues in a “future proceeding more comprehensively focused\non advancing broadband deployment on Tribal lands.” 2016\nLifeline Modernization Order, note 9, ¶ 211. This statement\nsignaled to interested persons that until a new notice-and-\ncomment rulemaking was commenced, there was no reason to\nsubmit further comment regarding a facilities requirement and\na rural limitation in response to the 2015 Lifeline Second\nFNPRM. By referring to a “proceeding” and a “more\ncomprehensive[] focus,” the Commission gave interested\npersons every reason to conclude the old docket was closed and\nadditional comments on these proposed limitations could be\nsubmitted at a later time as part of a new rulemaking\nproceeding. This interpretation is consistent with the\n\f 25\nCommission’s own definition of “proceeding” as a process for\n“obtaining information,” 47 C.F.R. § 1.1, as well as the\nCommission’s past practice of referring to a new notice-and-\ncomment-rulemaking proceeding when it promised a “future\nproceeding.”20 It is also consonant with the APA’s definition\nof a “proceeding” as a rulemaking, an adjudication, or a\nlicensing, 5 U.S.C. § 551(12); see id. § 551(5), (7), (9), as the\nlatter were not being considered.\n\n The Commission’s procedural error is not harmless;\npetitioners have additional information that is directly on point\n— including comments on the geographic maps delineating\n“urban” versus “rural” areas, data about the cost of services to\nconsumers, updated information about facilities-based\nproviders’ relinquishment of eligibility, and econometric\nstudies. See CSX Transp. v. Surface Transp. Bd., 584 F.3d\n1076, 1083 (D.C. Cir. 2009). The two-week period between\nissuance of the unpublished draft 2017 Order on October 26\nand the public notice on November 9 cutting off lobbying was\nnot an adequate period for eliciting meaningful comments.\n\n When substantial rule changes are proposed, a 30-day\ncomment period is generally the shortest time period sufficient\nfor interested persons to meaningfully review a proposed rule\nand provide informed comment. Petry v. Block, 737 F.2d 1193,\n1201 (D.C. Cir. 1984); see Prometheus Radio Project v. FCC,\n\n20\n See, e.g., Improvements to Benchmarks and Related\nRequirements Governing Hearing Aid-Compatible Mobile\nHandsets, Report and Order, 31 FCC Rcd. 9336, ¶¶ 42–43\n(2016); An Inquiry Into the Commission’s Policies and Rules\nRegarding AM Radio Service Directional Antenna\nPerformance Verification, Second Report and Order and\nSecond Further Notice of Proposed Rulemaking, 23 FCC Rcd.\n14267, ¶ 11 (2008).\n\f 26\n652 F.3d 431, 453 (3d Cir. 2011). Here, comments on the draft\n2017 Order reflect the inability to comment meaningfully\nwithin this brief time.21 See Allina Health Servs. v. Sebelius,\n746 F.3d 1102, 1110 (D.C. Cir. 2014). Petitioners’ new data\nand information demonstrate that inviting another round of\ncomments on these Tribal rural issues would allow the\nCommission to act on the basis of up-to-date, more\ncomprehensive, and specifically targeted information.22 New\ninformation was presented as well in the course of seeking a\nstay of the challenged order from the Commission once the\nCommission made population maps available and better\ndefined “rural.”23 The Commission’s promise of a new\n\n21\n Bridging the Digital Divide for Low-Income Consumers et\nal., Ex Parte Letter of Native Public Media, 1–2 (Nov. 7,\n2017); Bridging the Digital Divide for Low-Income Consumers\net al., Ex Parte Letter of Lifeline Connects Coalition, National\nLifeline Association, Boomerang Wireless, LLC and Easy\nTelephone Services Co., 2–3 (Nov. 9, 2017); Bridging the\nDigital Divide for Low-Income Consumers et al., Ex Parte\nLetter of Lifeline Connects Coalition, National Lifeline\nAssociation, Boomerang Wireless, LLC and Easy Telephone\nServices Co., 3–5 (Nov. 13, 2017). Assist, Boomerang, and\nEasy commented that without population maps it was not\npossible to identify the boundaries of the “rural” area\ncontemplated in the draft 2017 Order. Assist Ex Parte, note\n12, at 7 n.22.\n22\n See 2017 Lifeline Order, note 11, Notice of Inquiry ¶¶ 123,\n125; Bridging the Digital Divide for Low-Income Consumers\net al., Comments of the National Lifeline Association, 9–11,\n57–62, 106–08 (Feb. 21, 2018); 2017 Lifeline Order, note 11,\nDissenting Statement of Commissioner Mignon L. Clyburn, 32\nFCC Rcd. at 10,558.\n23\n See Bridging the Digital Divide for Low-Income Consumers\net al., Joint Petition for Stay of Fourth Report and Order\n\f 27\nrulemaking proceeding effectively lulled interested persons\ninto concluding that they did not need to quickly submit\nadditional evidence to the Commission or request additional\ntime. See CSX Transp., 584 F.3d at 1083. In view of the need\nfor a new notice-and-comment-rulemaking proceeding as\npromised, the court need not address petitioners’ contention\nthat the Commission failed to follow its Tribal consultation\npolicy.\n\n Accordingly, because the Commission’s adoption of the\nTribal Facilities Requirement and Tribal Rural Limitation was\narbitrary and capricious, the court vacates the 2017 Lifeline\nOrder, 32 FCC Rcd. at 10,522–23, and remands the matter to\nthe Commission for a new notice-and-comment-rulemaking\nproceeding.\n\n\n\n\nPending Judicial Review, Declarations of David Dorwat, Joe\nFernandez, Joseph G. Wildcat, Jason Schlender, Phyliss J.\nAnderson, Sarah Stahelin.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363893/", "author_raw": "Opinion for the court filed by Circuit Judge ROGERS"}]}	ROGERS	GRIFFITH	RANDOLPH	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4586640/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,476	Cathleen COLVIN v. SYRIAN ARAB REPUBLIC	Colvin v. Syrian Arab Republic	2019-02-01	Civil Action No. 16-1423 (ABJ)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252396/"}]}				0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334476/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
8,443,870	NATIONAL LIFELINE ASSOCIATION v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Oceti Sakowin Tribal Utility Authority, Intervenor	Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n	2019-02-01	No. 18-1026; C/w 18-1080	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Griffith, Randolph, Rogers", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415298/", "author_raw": ""}]}	GRIFFITH	RANDOLPH	ROGERS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/8443870/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,554	Simon BRONNER v. Lisa DUGGAN	Bronner v. Duggan	2019-02-04	Civil Action No.: 16-0740 (RC)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Contreras", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252474/", "author_raw": ""}]}	CONTRERAS	CONTRERAS		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334554/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,644	EAGLE TRUST FUND v. UNITED STATES POSTAL SERVICE	Eagle Trust Fund v. U.S. Postal Serv.	2019-02-04	No. 1:17-cv-2450 (KBJ)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Jackson", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252564/", "author_raw": ""}]}	NO_JUDGES			0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334644/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,645	Morgan ROE v. Reginald La'Vincient WILSON	Roe v. Wilson	2019-02-04	Case No. 18-cv-00171 (CRC)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Cooper", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252565/", "author_raw": ""}]}	COOPER	COOPER		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334645/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,646	United States v. Harshia JOHNSON	United States v. Johnson	2019-02-04	Criminal Action No.: 18-207 (RC)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Contreras", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252566/", "author_raw": ""}]}	CONTRERAS	CONTRERAS		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334646/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,648	AIR ALLIANCE HOUSTON v. U.S. CHEMICAL AND SAFETY HAZARD INVESTIGATION BOARD	Air Alliance Hous. v. U.S. Chem. & Safety Hazard Investigation Bd.	2019-02-04	Case No. 17-cv-02608 (APM)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Mehta", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252568/", "author_raw": ""}]}	MEHTA	MEHTA		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334648/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,741	STORY OF STUFF PROJECT v. UNITED STATES FOREST SERVICE	Story of Stuff Project v. U.S. Forest Serv.	2019-02-04	Case No. 1:18-cv-00170 (TNM)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252661/", "author_raw": ""}]}	MCFADDEN	MCFADDEN		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334741/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,429	UNITED STATES of America, Appellee v. Alvaro ALVARAN-VELEZ, Also Known as Marcos, Appellant	United States v. Alvaro Alvaran-Velez	2019-02-05	17-3065	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Henderson, Pillard, Edwards", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge PILLARD", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 16, 2018 Decided February 5, 2019\n\n No. 17-3065\n\n UNITED STATES OF AMERICA,\n APPELLEE\n\n v.\n\n ALVARO ALVARAN-VELEZ, ALSO KNOWN AS MARCOS,\n APPELLANT\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:07-cr-00065-2)\n\n\n Carmen D. Hernandez, appointed by the court, argued the\ncause and filed the brief for appellant.\n\n Kirby A. Heller, Attorney, U.S. Department of Justice,\nargued the cause and filed the brief for appellee. Elizabeth\nTrosman, Assistant U.S. Attorney, entered an appearance.\n\n Before: HENDERSON and PILLARD, Circuit Judges, and\nEDWARDS, Senior Circuit Judge.\n\n Opinion for the Court filed by Circuit Judge PILLARD.\n\f 2\n PILLARD, Circuit Judge: The question on appeal is\nwhether the Ex Post Facto Clause forbids applying a current\nU.S. Sentencing Commission policy statement, which offers\nsentence reductions only to those defendants whose original\nsentences are not already below newly reduced guideline\nranges, to a defendant whose crime occurred before that\nversion of the policy statement took effect. The defendant,\nAlvaro Alvaran-Velez, claims that he could have gotten a\nsentence reduction under the version of the policy statement in\neffect at the time of his crime. Using a newer version, he\nargues, violated the Ex Post Facto Clause by eliminating a real\nchance for a shorter sentence upon guideline range reduction\nthat he believes existed when he committed the offense.\nBecause, correctly read, the earlier version did not even apply\nto him, we affirm the district court’s denial of Alvaran’s motion\nfor a sentence reduction.\n\n I.\n\n Alvaran violated 21 U.S.C. §§ 959, 960, and 963 by\nconspiring between 2005 and 2007 to distribute five kilograms\nor more of cocaine, knowing or intending that the cocaine\nwould be imported into the United States. He was convicted\nafter a jury trial in 2010. At the time of Alvaran’s sentencing\nin 2013, the applicable Sentencing Guideline range was 324 to\n405 months imprisonment. The court nevertheless sentenced\nhim to 180 months, significantly below the applicable range.\nIn doing so, the court weighed the seriousness of the offense,\nAlvaran’s lack of a criminal record, his poor health, letters from\nhis family attesting to his good character, the fact that he was\nraised in a poor family, and that he was far less culpable than\nanother defendant who had been sentenced to 300 months—all\nfactors appropriate to consider under 18 U.S.C. § 3553(a).\n\f 3\n The year following Alvaran’s sentencing, the Sentencing\nCommission adopted Guideline Amendment 782, which\nlowered the base offense levels for certain drug crimes by two\nlevels, and Amendment 788, which applied the new levels\nretroactively. United States Sentencing Commission,\nGuidelines Manual, App. C, amends. 782, 788 (Supp. 2014).\nHad Alvaran been sentenced under the amended guidelines, the\napplicable sentencing range would have been 262 to 327\nmonths—substantially lower than the 324-to-405-month range\nat Alvaran’s initial sentencing, but still well above his actual\n180-month sentence.\n\n Alvaran requested a sentence reduction pursuant to 18\nU.S.C. § 3582(c)(2), which allows a district court to reduce the\nsentence of a defendant whose guideline range is subsequently\nlowered “if such a reduction is consistent with applicable\npolicy statements issued by the Sentencing Commission.” But\nthe district court held that a newer version of one of those\npolicy statements, USSG § 1B1.10, foreclosed reducing his\nsentence. As revised by a 2011 amendment, Amendment 759,\nthat policy statement set the bottom of the new guideline range\nas a floor for sentence reductions by providing that “the court\nshall not reduce the defendant’s term of imprisonment . . . to a\nterm that is less than the minimum of the amended guideline\nrange.” USSG § 1B1.10(b)(2)(A) (2016). Because Alvaran’s\nsentence was already below the minimum of the amended\nguideline range, the district court held that USSG § 1B1.10\nprevented any further reduction.\n\n Alvaran contended that applying the policy statement’s\nsentence reduction floor to deny him a reduction violated the\nEx Post Facto Clause, U.S. CONST. art. I, § 9, cl. 3, because a\n2006 version of the policy statement—in force when he\ncommitted his crime—would have allowed the district court to\nreduce his sentence in response to the amended guidelines\n\f 4\nrange. That 2006 policy statement advised a court reducing a\nsentence pursuant to guideline amendments to “consider the\nterm of imprisonment that it would have imposed had the\namendment(s) to the guidelines listed in subsection (c) been in\neffect at the time the defendant was sentenced.” USSG\n§ 1B1.10(b) (2006). Subsection (c) listed twenty-four\namendments that lowered guideline ranges; it did not include\nthe amendment that lowered Alvaran’s sentencing range,\nAmendment 782, which would not be passed for another eight\nyears. Alvaran pointed to an application note to the 2006\nversion that states that, “[w]hen the original sentence\nrepresented a downward departure, a comparable reduction\nbelow the amended guideline range may be appropriate.” Id.\n§ 1B1.10, comment. (n.3). That application note, he claimed,\nshows that, but for the 2011 amendment of USSG\n§ 1B1.10(b)(2)(A) prohibiting below-guideline sentence\nreductions, he would have been eligible for a reduction below\nthe lowered guideline range comparable to the original\nreduction the court granted.\n\n At the hearing on Alvaran’s motion for a sentence\nreduction, the district court said that it would lower his\nsentence “very substantially” if it could, but that the then-\ncurrent Guidelines Manual forbade a reduction. Alvaran\nargued that applying the new policy statement with the\nguideline reduction violated the Ex Post Facto Clause because\nit eliminated his opportunity to invoke the court’s discretion to\nlower his sentence. The district court disagreed.\n\n We review de novo whether applying the 2016 version of\nUSSG § 1B1.10 to Alvaran violates the Ex Post Facto Clause.\nSee United States v. Haipe, 769 F.3d 1189, 1191 (D.C. Cir.\n2014).\n\f 5\n II.\n\n Any “law that changes the punishment, and inflicts a\ngreater punishment[] than the law annexed to the crime[] when\ncommitted,” is an ex post facto law. Calder v. Bull, 3 U.S. 386,\n390 (1798). “The touchstone of this . . . inquiry is whether a\ngiven change in law presents a ‘sufficient risk of increasing the\nmeasure of punishment attached to the covered crimes.’”\nPeugh v. United States, 569 U.S. 530, 539 (2013) (quoting\nGarner v. Jones, 529 U.S. 244, 250 (2000)). Whether a risk is\nsufficient is “a matter of degree” that “cannot be reduced to a\n‘single formula.’” Id. (quoting Calif. Dep’t of Corr. v.\nMorales, 514 U.S. 499, 509 (1995)). But the Court has said\nthat a law that “creates only the most speculative and attenuated\npossibility of producing the prohibited effect of increasing the\nmeasure of punishment for covered crimes” does not present a\nsufficient risk. Morales, 514 U.S. at 509.\n\n The government suggests that sentence modification\nproceedings under 18 U.S.C. § 3582(c)(2) in response to a\nCommission decision to lower the guideline range simply “do\nnot implicate the ex post facto prohibition” because such\nproceedings “by their very nature can only reduce a\ndefendant’s sentence (or, at worst, leave it unchanged).”\nAppellee Br. 10-11. The Supreme Court, however, has held\nthat certain losses of opportunities for shortened sentences can\nconstitute an “increased” punishment under the Ex Post Facto\nClause. An opportunity for a shortened sentence whose loss\n“creates only the most speculative and attenuated possibility of\n. . . increasing the measure of punishment for covered crimes”\ndoes not implicate the Ex Post Facto Clause. Morales, 514\nU.S. at 509. But if the opportunity is sufficiently likely to\nmaterialize, its loss may have “the effect of lengthening [a\ndefendant’s] period of incarceration.” Lynce v. Mathis, 519\nU.S. 433, 443 (1997). In Weaver v. Graham, the Court\n\f 6\ninvalidated the retroactive application of a Florida statute that\nmade the formula for calculating early-release credits less\ngenerous than it had been when the defendant committed his\ncrime. 450 U.S. 24, 25, 35-36 (1981). Rejecting the notion\nthat the ex post facto analysis depended on whether defendants\nhad a right to early-release credits before the new law came\ninto effect, the Court said that, “even if a statute merely alters\npenal provisions accorded by the grace of the legislature, it\nviolates the Clause if it is both retrospective and more onerous\nthan the law in effect on the date of the offense.” Id. at 30-31.\nEven though Weaver had not yet earned the credits, the new\nlaw’s net effect of making credits harder to obtain than they\nhad been when Weaver was sentenced violated the Ex Post\nFacto Clause. Id. at 35. Similarly, in Lynce v. Mathis, the\nCourt invalidated a different Florida statute that retroactively\ncanceled early-release credits that Lynce had already used to\nget out of prison. 519 U.S. at 435. The state argued that,\nbecause the type of credits at issue only accrued if the Florida\nprison system passed a certain threshold of overcrowding,\nLynce “could not reasonably have expected to receive any such\ncredits,” and that his risk of increased punishment was\ntherefore “speculative and attenuated.” Id. at 437-38, 446. The\nCourt rejected that argument as applied to Lynce, who had\nalready been awarded credits that stood to be cancelled. Id. at\n446.\n\n Alvaran likens his situation to that of Weaver and Lynce.\n“Throughout most of its history,” he contends, guidelines\npolicy statement section 1B1.10 “encouraged courts modifying\nsentences pursuant to retroactive guideline amendments to re-\nimpose a below-guideline sentence” that was, proportionately,\nas far below the reduced guidelines range as the original\nsentence was below the original range. Appellant’s Br. 3. As\nAlvaran sees it, the 2011 amendment changed that to his\ndetriment. By generally prohibiting sentence reductions for\n\f 7\nanyone whose original sentence fell below the bottom of the\namended guidelines range, Alvaran claims, the 2011\namendment effected “the complete removal of any opportunity\nto invoke the court’s discretion to reduce a sentence” for\nsomeone in his position. Id. at 12-13. The amended version of\nsection 1B1.10, he argues, thus imposes a “reduced opportunity\nto shorten his time in prison.” Id. at 13 (emphasis omitted)\n(quoting Weaver v. Graham, 450 U.S. 24, 33-34 (1981)).\n\n The flaw in Alvaran’s reasoning is that, unlike Weaver and\nLynce, Alvaran never had the opportunity for reduced\npunishment that he now claims he lost. The text Alvaran wants\napplied to him—that “the court should consider the term of\nimprisonment that it would have imposed had the\namendment(s) to the guidelines listed in subsection (c) been in\neffect at the time the defendant was sentenced”—is explicitly\nlimited to the listed amendments, each of which had already\nbeen adopted and made retroactive in 2006. USSG § 1B1.10(b)\n(2006) (emphasis added). Alvaran reads into the 2006\nguideline policy a broad, forward-looking promise of\nproportionate sentencing reduction that the textually cabined\npolicy does not support. Unlike the laws at issue in Weaver\nand Lynce, the 2006 version of section 1B1.10 did not confer\non defendants a general opportunity to benefit; rather, it\nextended an opportunity that, by its terms, applied only to the\namendments it enumerated.\n\n Because the 2006 version of section 1B1.10 did not apply\nto Alvaran in the first place, we conclude that applying its\namended 2016 counterpart does not make his punishment more\nonerous than it otherwise would have been. Although our sister\ncircuits have relied on different and sometimes broader\ngrounds, none has held to the contrary. See United States v.\nRamirez, 846 F.3d 615, 625 (2d Cir. 2017); United States v.\nKruger, 838 F.3d 786, 790-92 (6th Cir. 2016); United States v.\n\f 8\nThompson, 825 F.3d 198, 200, 206 (3d Cir. 2016), cert. denied,\n137 S. Ct. 326 (2016); United States v. Kurtz, 819 F.3d 1230,\n1236-37; (10th Cir. 2016); United States v. Waters, 771 F.3d\n679, 680-81 (9th Cir. 2014) (per curiam); United States v.\nDiggs, 768 F.3d 643, 645-46 (7th Cir. 2014); United States v.\nColon, 707 F.3d 1255, 1258-59 (11th Cir. 2013). We join the\nunanimity of circuits that have held that the 2006 version of the\npolicy statement did not by its own terms give persons in\nAlvaran’s position the opportunity he claims for a reduced\nsentence.\n\n We also hold that the amendment’s prohibition on below-\nguideline sentence reductions is a permissible exercise of the\nSentencing Commission’s discretion to determine and limit the\nretroactivity of its amendments. See Dillon v. United States,\n560 U.S. 817, 826 (2010). The Supreme Court has noted that\nit is “aware of no constitutional requirement of retroactivity\nthat entitles defendants sentenced to a term of imprisonment to\nthe benefit of subsequent Guidelines amendments.” Id. at 829.\nHere, the Commission exercised its discretion in drafting\nAmendment 782, which lowered Alvaran’s guideline range, so\nas to render it retroactive only as to defendants who had\nreceived a sentence exceeding the newly lowered minimum.\nThe amendment simply did not retroactively lower the range\nfor defendants like Alvaran, who had already received a below-\nminimum sentence. The Commission took nothing away from\nAlvaran when it created a benefit targeted to offenders whose\noriginal sentences exceeded the bottom of the newly lowered\nguideline range.\n\n * * *\n\n We accordingly affirm the district court’s decision to deny\nthe motion for a sentence reduction.\n\n So ordered.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364682/", "author_raw": "Opinion for the Court filed by Circuit Judge PILLARD"}]}	HENDERSON	PILLARD	EDWARDS	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/4587429/	Published	1	0	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,587,430	Gordon C. REID, Appellant v. Hugh J. HURWITZ, Acting Director, Federal Bureau of Prisons, Appellee	Gordon Reid v. Mark S. Inch	2019-02-05	17-5012	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Griffith, Wilkins, Katsas", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887965/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887966/", "author_raw": ""}, {"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued May 17, 2018 Decided February 5, 2019\n\n No. 17-5012\n\n GORDON C. REID,\n APPELLANT\n\n v.\n\n MARK S. INCH, DIRECTOR, FEDERAL BUREAU OF PRISONS,\n APPELLEE\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:15-cv-00375)\n\n\n Caleb P. Redmond, Student Counsel, argued the cause as\namicus curiae in support of appellant. With him on the briefs\nwere Erica Hashimoto, Director, and Paola Pinto and Sean\nStein, Student Counsel.\n\n Daniel Schaefer, Assistant U.S. Attorney, argued the cause\nfor appellee. With him on the brief were Jessie K. Liu, U.S.\nAttorney, and R. Craig Lawrence, Assistant U.S. Attorney.\n\n Before: GRIFFITH, WILKINS and KATSAS, Circuit Judges.\n\n Opinion for the Court filed by Circuit Judge WILKINS.\n\n Dissenting opinion filed by Circuit Judge KATSAS.\n\n 2\n\n WILKINS, Circuit Judge: This case concerns whether the\nDistrict Court properly dismissed based on mootness the claims\nof an incarcerated prisoner. Because the allegations in Gordon\nReid’s Complaint logically fall within a mootness exception for\nclaims “capable of repetition, yet evading review,” we reverse\nthe decision of the District Court and remand the case for\nfurther proceedings.\n\n I.\n\n In reviewing the District Court’s dismissal, we “accept all\nof the factual allegations in the complaint as true.” Jerome\nStevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.\n2005) (alteration and citation omitted). The facts recounted\nhere come from the Complaint or undisputed submissions in\nthe record. In 2008, the United States District Court for the\nDistrict of New Hampshire sentenced Gordon Reid to\nincarceration for a term of 220 months, followed by three years\nof supervised release, for the crime of Interference with\nCommerce by Threats of Violence. Reid began serving that\nsentence on May 6, 2008, when he was delivered to the U.S.\nPenitentiary McCreary in Kentucky. Id. Sometimes for\ndisciplinary reasons, and other times for administrative ones,\nReid was housed repeatedly in Special Housing Units (SHUs)\nat McCreary and the other Bureau of Prisons (BOP) facilities,\nwhere he has continued serving his sentence.\n\n Reid, proceeding pro se, filed a Complaint in the District\nCourt for the District of Columbia on March 16, 2015.1 At the\ntime, Reid was incarcerated at the U.S. Penitentiary in Tucson,\nArizona. He alleged that BOP had violated its own policies\n\n1\n Reid’s filing was styled a “Petition for Declaratory and Injunctive\nRelief.” J.A. 6. The District Court construed it as a Complaint.\n\n 3\nand procedures in three ways: (1) BOP had failed to deliver his\nmagazine subscriptions while he was confined in SHUs, thus\nviolating 28 C.F.R. § 540.71 and BOP Program Statement\n5266.11 (Nov. 9, 2011); (2) BOP had deprived him of outside\nexercise while he was confined in SHUs, violating 28 C.F.R.\n§ 541.31(g) and BOP Program Statement 5270.10 (Aug. 1,\n2011); and (3) BOP deprived him of meaningful access to the\nadministrative remedy procedures in violation of 28 C.F.R.\n§ 542.10 and BOP Program Statement 1330.18 (Jan. 6, 2014).\nWhen questioned about these violations, Reid alleges BOP\npersonnel “invariably” claimed that they were complying with\n“BOP Policy.” J.A. 7-8. We liberally construe the pro se\nComplaint as asserting not only a broad challenge to a\nnationwide BOP policy or practice, but also a declaratory claim\nwith respect to the individual deprivations Reid suffered in\nSHUs. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per\ncuriam). The Complaint asked for declaratory, injunctive, and\nmandamus relief to remedy these alleged violations.\n\n In total, Reid appears to have been transferred in and out\nof a SHU over twenty times from August 1, 2007, to July 19,\n2016, under either administrative detention or disciplinary\nsegregation status. This amounted to at least 764 days in a\nSHU, and some of those confinement periods postdated the\nfiling of his Complaint in the District Court.\n\n BOP filed a motion to dismiss or, in the alternative, for\nsummary judgment, arguing that Reid’s claims were moot.\nBOP argued that Reid was “no longer confined at USP Tucson,\nhis place of confinement when he filed this civil action,” or at\nany of the other facilities where the alleged violations occurred.\nMot. to Dismiss at 15-16, No. 1:15-cv-375 (RMC) (D.D.C.\nfiled Sept. 28, 2015), ECF No. 14. BOP concluded that Reid’s\n“allegations concerning how staff at previous institutions\nhandled the processing of inmates’ incoming magazines, how\n\n 4\nSHU staff allocated outside recreation time, or Unit Team’s\nprotocol for conducting rounds in SHU no longer present[ed] a\ncase or controversy,” and argued that the mootness exceptions\ndid not apply. Id. at 16.\n\n In response to BOP’s motion, the District Court issued an\norder to “advise the pro se Plaintiff of his obligations” under\nthe Rules, as well as the consequences for failing to follow\nthem. Order at 1, 3, No. 1:15-cv-375 (RMC) (D.D.C. filed Oct.\n1, 2015), ECF No. 15. The District Court informed Reid that\nhe needed to file a response in opposition to the motion by\nNovember 30, 2015, and advised him of all relevant Federal\nRules of Civil Procedure and local rules regarding opposition\nto motions to dismiss and for summary judgment. Id.\n\n After initially granting BOP’s motions because of Reid’s\nfailure to timely respond, the District Court accommodated\nReid’s late filing of a response opposing BOP’s motions. See\nOrder at 1-2, No. 1:15-cv-375 (RMC) (D.D.C. filed June 2,\n2016), ECF No. 21. In his brief opposing dismissal and\nsupporting his cross-motion for summary judgment, Reid\nargued that the case was not moot because he was challenging\nongoing practices of BOP. Mot. to Vacate Judgment at 106,\nNo. 1:15-cv-375 (RMC) (D.D.C. filed May 6, 2016), ECF No.\n20. He also argued that the case was an exception to the\nmootness doctrine: “That these controversies are capable of\nrepetition is a matter of historical fact rather than deduction for\nPlaintiff has, in fact, been repeatedly housed in SHU units\nacross the country where, time and again,” BOP had committed\nthe same violations. Id. at 109.\n\n The District Court ordered BOP to file an opposition to\nReid’s cross-motion for summary judgment, combined with\nBOP’s opposition to Reid’s motions to strike and reply in\nsupport of its motion to dismiss. In its filing, BOP stated that\n\n 5\n“[n]ormally, a prisoner’s transfer or release from a prison\nmoots any claim he might have for equitable relief arising out\nof the conditions of his confinement in prison.” Def.’s Opp’n\nto Pl’s Cross Mot. for Summ. J. & Reply in Supp. of Def.’s\nMot. to Dismiss (Def.’s Cross Opp’n & Reply) at 7, No. 1:15-\ncv-375 (RMC) (D.D.C. filed July 21, 2016), ECF No. 25; see\nalso Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir.\n1998). BOP responded to Reid’s argument that his claims were\nnot moot due to changing circumstances by reiterating that\nReid had since been transferred to another facility and out of\nthe SHU. Def.’s Cross Opp’n & Reply 7-8. BOP argued that\n“with the exception of one night, [Reid] ha[d] not been\nconfined in SHU at all since his transfer to USP Coleman.” Id.\nat 8 (emphasis in original). BOP stated that Reid’s claims were\n“linked exclusively to his confinement in the SHUs and\ntherefore no longer present[ed] a ‘live’ controversy,” as Reid\nwas no longer confined in SHUs. Id. at 9. BOP also pointed\nout that Reid had not alleged continued violations since his\n(then) latest transfer. Id. In support, BOP attached an affidavit\nstating that Reid was no longer housed in a SHU and had been\nin the general population at the Coleman facility with the\nexception of one twelve-hour period. Decl. of An Tran at 1-5,\nNo. 1:15-cv-375 (RMC) (D.D.C. filed July 21, 2016), ECF No.\n25-1. BOP also attached inmate records with data it had not\noriginally provided in support of its motion. Id. at 8-50.\n\n The District Court instructed Reid that he could file a reply\nin support of his cross motion for summary judgment before\nAugust 29, 2016. Order at 2, No. 1:15-cv-375 (RMC) (D.D.C.\nfiled June 2, 2016), ECF No. 21. On November 8, 2016 – over\ntwo months after the deadline for Reid’s reply brief – the\nDistrict Court issued an order granting BOP’s motion to\ndismiss Reid’s claims as moot and denying his cross motion for\nsummary judgment. The District Court noted that Reid had\n“asserted nothing” to contradict BOP’s argument that “for the\n\n 6\npast straight year” Reid had not been “confined to the Special\nHousing Units that gave rise to his claims.” Reid, 2016 WL\n6602614, at 1. Thus, the District Court held:\n\n “Normally, a prisoner’s transfer or release from\n a prison moots any claim he might have for\n equitable relief arising out of the conditions of\n his confinement in that prison.” And in the\n absence of “a cognizable cause of action,” a\n plaintiff has “no basis upon which to seek\n declaratory relief.”\n\nId. (citations omitted).\n\n On appeal, Amicus for Reid2 argues that the District Court\ndid not meet its obligations for litigation involving a pro se\nplaintiff,3 and that Reid’s claims avoid mootness because they\nare capable of repetition, yet evading review or, alternatively,\nbecause the voluntary cessation doctrine applies.\n\n II.\n\n We review de novo the District Court’s dismissal for\nmootness. Schmidt v. United States, 749 F.3d 1064, 1068 (D.C.\nCir. 2014). “Under Article III of the United States Constitution\nwe ‘may only adjudicate actual, ongoing controversies.’”\n\n2\n We thank Erica Hashimoto, Paolo Pinto, Caleb P. Redmond, and\nSean Stein for their work on this appeal.\n3\n The District Court was very generous with Reid, giving him\nadditional instructions and leeway with late filings. The District\nCourt not only complied with, but also went above and beyond, our\nguidance for managing the docket of a pro se case. See Moore v.\nAgency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993); Neal v.\nKelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992).\n\n 7\nDistrict of Columbia v. Doe, 611 F.3d 888, 894 (D.C. Cir.\n2010) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)).\nUnder the mootness doctrine, we cannot decide a case if\n“events have so transpired that the decision will neither\npresently affect the parties’ rights nor have a more-than-\nspeculative chance of affecting them in the future.” Clarke v.\nUnited States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)\n(quotation marks omitted). The party seeking jurisdictional\ndismissal must establish mootness, while the opposing party\nhas the burden to prove that a mootness exception applies.\nHoneywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d\n568, 576 (D.C. Cir. 2010).\n\n The Supreme Court has carved out one such exception for\nclaims that are “capable of repetition, yet evading review.”\nSpencer v. Kemna, 523 U.S. 1, 17 (1998). “The exception\napplies when: ‘(1) the challenged action is in its duration too\nshort to be fully litigated prior to its cessation or expiration, and\n(2) there is a reasonable expectation that the same complaining\nparty will be subject to the same action again.’” Doe, 611 F.3d\nat 894 (quoting Jenkins v. Squillacote, 935 F.2d 303, 307 (D.C.\nCir. 1991)). At the motion to dismiss stage, courts assess\njusticiability based in part on “the theory of injury presented in\nthe complaint” and “the facts alleged in support of the claim.”\nHaase v. Sessions, 835 F.2d 902, 907 (D.C. Cir. 1987)\n(reversing district court’s 12(b)(1) dismissal because the court\n“did not adequately assess whether the alleged policy pose[d]\na realistic threat to [the plaintiff]”). Although Haase applies\nthis framework to constitutional standing, not mootness, they\nare “related concepts” because both go to the plaintiff’s injury.\nGarden State Broad. Ltd. P’ship v. FCC, 996 F.2d 386, 394\n(D.C. Cir. 1993). If anything, the standing doctrine is stricter\nthan the mootness doctrine. If the theory of justiciability is\n“not itself inherently flawed, the [Article III] inquiry is\nordinarily . . . complete.” Haase, 835 F.2d at 907.\n\n 8\n\n BOP urges us to hold Reid’s factual allegations, which it\nfinds “speculative,” to a stricter standard, such as the\nplausibility standard articulated in Ashcroft v. Iqbal, 556 U.S.\n662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544\n(2007). But it is impossible for a plaintiff, when she initially\nfiles a Complaint, to make plausible allegations supporting a\nmootness exception. The District Court focused not on the\nallegations Reid made in his Complaint, but rather on the legal\ntheory of justiciability. The District Court dismissed the\npleadings on the basis that Reid’s transfer from the SHU\nrendered inapplicable the “capable of repetition, yet evading\nreview” exception as a matter of law. Because we disagree and\nsee no logical flaw in the theory of why the mootness exception\nmay apply, we reverse the District Court’s decision to dismiss\nthe Complaint at the pleadings stage.4\n\n First, Reid adequately alleges that the challenged action is\ntoo fleeting to be fully litigated. To address whether a claim\nevades review, we ask whether “the challenged action was in\nits duration too short to be fully litigated prior to its cessation\nor expiration.” Weinstein v. Bradford, 423 U.S. 147, 149\n(1975). In Doe, we noted that “there can be no doubt that a\none-year placement order under the [Individuals with\nDisabilities Education Act] is, by its nature, too short in\nduration to be fully litigated prior to its expiration.” 611 F.3d\nat 894-95. Based on the information provided by BOP, Reid’s\nlongest stay in a SHU was 120 days, and many of his other\nstays were for much shorter time periods. Amicus Br. 8-10, 33.\nWe agree with Amicus that this short duration “evades even\n\n4\n Although Amicus presents an argument in favor of applying the\nvoluntary cessation doctrine under Aref v. Lynch, 833 F.3d 242 (D.C.\nCir. 2016), this argument was not raised below and is thus forfeited.\nSee Keepseagle v. Vilsack, 815 F.3d 28, 36 (D.C. Cir. 2016).\n\n 9\ndistrict court review, let alone review by this Court and the\nSupreme Court.” Id. at 33. The short durations of Reid’s SHU\nplacements clearly meet the threshold.\n\n Second, we see no logical deficiency in Reid’s allegations\nthat he reasonably expects to be subjected to the same\nchallenged deprivations in the future. See FEC v. Wisc. Right\nto Life, Inc., 551 U.S. 449, 463-64 (2007). As Amicus points\nout, Reid demonstrated that BOP had placed him in the SHU\n“in almost every facility that confined him for longer than\ntwenty-eight days, including four instances of segregation after\nhe filed his complaint.” Amicus Br. 31.\n\n On this point, Olmstead v. L.C. ex rel. Zimring, 527 U.S.\n581 (1999), is instructive. In Olmstead, the Supreme Court\nnoted that a claim was not moot when the petitioners were\n“currently receiving treatment in community-based programs”\nbecause of “the multiple institutional placements [the\npetitioners] ha[d] experienced,” making the claims capable of\nrepetition, yet avoiding review. Id. at 594 n.6. Thus, even\nthough the petitioners were no longer in an institutional\nplacement, their claims avoided mootness due in part to the\nmultiple times that they had experienced institutional\nplacements in the past. Reid’s circumstance is similar.\n\n BOP recognizes that “[a] prisoner’s transfer to another\nfacility or unit will not moot a claim for equitable relief . . . if\nthe very same policy, practice, or condition continues to apply\nto the same prisoner’s confinement following his or her transfer\nto another unit or facility.” Appellee’s Br. 25 (citing Scott, 139\nF.3d at 941). But, BOP contends, “[o]n this record, the chance\nthat Reid would again be subjected to the three deprivations in\nSHU that he challenged was entirely speculative.” Id. at 26;\nsee id at 36.\n\n 10\n The BOP’s argument ignores that Reid’s complaint\nidentifies not only single instances but also BOP’s alleged\npolicy or practice of violating its own regulations to the\ndetriment of Reid. In particular, Reid has alleged three key\nfacts. First, he has been housed at eight different SHUs since\n2008. Second, he has suffered a uniform set of deprivations at\neach SHU that contradict BOP’s written regulations. Third,\neach time he has suffered a deprivation, he alleges that BOP\nofficials justify the deprivations based on “BOP policy.” J.A.\n7-8. Having been placed in a SHU in myriad different BOP\ninstitutions, subject each time to a restriction allegedly imposed\nunder a purported BOP policy or practice contravening BOP\nregulations, Reid has proffered a logical theory that the\nchallenged actions reasonably will recur despite his current\ntransfer out of the SHU. See, e.g., Olmstead, 527 U.S. at 594\nn.6; Doe v. Sullivan, 938 F.2d 1370, 1378-79 (D.C. Cir. 1991).\n\n III.\n\n Both the District Court and the government on appeal have\nfailed to grapple with Reid’s claim that he was repeatedly\nsubjected to deprivations in the SHU due to an ongoing policy\nor practice of the BOP. Instead, the government argues that\nReid is unlikely to be subjected to those conditions again\nbecause his past experience is insufficiently predictive of the\nlikelihood of Reid returning to a SHU. See Appellee’s Br. 39-\n42 (“Once the conditions of confinement that an inmate\nchallenges cease completely at some point[,] an expectation of\nrecurrence is no longer reasonable.” (emphasis in original)).\n\n In dismissing Reid’s Complaint under Rule 12(b)(1), the\nDistrict Court simply stated that, “[n]ormally, a prisoner’s\ntransfer or release from a prison moots any claim he might have\nfor equitable relief arising out of the conditions of his\nconfinement in that prison.” Although this is “normally” true,\n\n 11\nit is not true when a prisoner alleges he has been subject to\nthose conditions in multiple BOP facilities, along with an\nalleged policy or practice of violating regulations that would\napply to Reid at any BOP facility in the future. The District\nCourt erred by dismissing Reid’s claims as moot when, as a\nlogical matter, his pleadings as a whole are capable of\nrepetition, yet evading review. See Haase, 835 F.2d at 907-08.\n\n The District Court has multiple options on which to\nproceed on remand. The government filed various motions\nunder Rule 12 and Rule 56, and it may renew its motions when\nthis case returns to the District Court.\n\n Although Reid has presented a sound legal theory for why\nhis claims are not moot, the District Court may have concerns\nabout “the facts alleged in support of” jurisdiction. Id. at 907.\nThe District Court is free “at the motion to dismiss stage” to\ninquire into Reid’s asserted facts in support of the mootness\nexception. Id. As a related but separate matter, the District\nCourt may doubt Reid’s standing to plead a broad-based attack\non the alleged BOP policy or practice. A plaintiff challenging\n“an ongoing policy must . . . demonstrate both that ‘the request\nfor declaratory relief is ripe’ and that [he has] ‘standing to bring\nsuch a forward-looking challenge.’” Conservation Force, Inc.\nv. Jewell, 733 F.3d 1200, 1206 (D.C. Cir. 2013) (quoting Del\nMonte Fresh Produce Co. v. United States, 570 F.3d 316, 321\n(D.C. Cir. 2009)). We have not determined the minimal\nrequirements for factual allegations rebutting a mootness\nchallenge that the District Court considers at the motion to\ndismiss stage, but we have held that a plaintiff must plead facts\nplausibly demonstrating standing, see, e.g., Humane Soc’y of\nthe U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). If the\nDistrict Court harbors doubts, it may give Reid “the\nopportunity to plead additional facts” to support jurisdiction.\nHaase, 835 F.2d at 903; see also Moore, 994 F.2d at 877\n\n 12\n(“[L]eave to amend is particularly appropriate when a plaintiff\nproceeds pro se.”).\n\n The District Court further may address the other Rule 12\nmotions. In vacating the decision below, we do not pass\njudgment on whether Reid has plausibly stated policy and\nindividual challenges that survive a Rule 12(b)(6) motion on\nthe merits. It is possible that, on remand, the District Court will\nhold that BOP’s alleged conduct “stops short of the line\nbetween possibility and plausibility of entitlement to relief.”\nSee Twombly, 550 U.S. at 557 (quotation marks omitted). But\nthat is a different question than the one before us now.\n\n The District Court also may wait until summary judgment\nto consider anew both Reid’s standing to assert the policy and\nindividual claims, as well as the BOP’s mootness argument.\n\n *\n\n The District Court erred in dismissing Reid’s Complaint\non the ground of mootness because it alleged a policy or\npractice of violations by the BOP. Reid’s theory for why his\nclaims are not moot is logically sound. See Haase, 835 F.2d at\n907-08. We reverse the decision of the District Court and\nremand the case for further proceedings.\n\n So ordered.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364683/", "author_raw": "Opinion for the Court filed by Circuit Judge WILKINS"}, {"author": "KATSAS, Circuit Judge, dissenting", "type": "dissent", "text": "KATSAS, Circuit Judge, dissenting: Gordon Reid alleges\nthat the Federal Bureau of Prisons has adopted a nationwide\npolicy to violate its own regulations regarding the treatment of\nprisoners. My colleagues reserve the question whether Reid\nhas adequately alleged such a policy. Yet, in assessing\nmootness, they credit the allegation for now and then use it to\ntransform specific past disputes—about Reid’s treatment in\nprisons where he is no longer housed—into a unified, recurring\ncontroversy that may follow Reid from prison to prison.\n\n Respectfully, I am unpersuaded. We should reject Reid’s\nconclusory allegation that BOP has implemented unlawful\nnationwide policies. And without such unifying policies, the\nspecific disputes alleged here are not capable of repetition.\nTherefore, I would affirm the dismissal of this case as moot.\n\n I\n\n In 2008, Reid was convicted of robbing a convenience\nstore at gunpoint. During pretrial detention, “Reid quickly\ndistinguished himself as a combative, disruptive, and violent\ninmate.” Reid v. Strafford Cty. Dep’t of Corr., No. 06-CV-182,\n2008 WL 163042, at 1 (D.N.H. Jan. 15, 2008). Since then,\nwhile incarcerated at various BOP facilities, Reid has amassed\na disciplinary record that includes assault with a dangerous\nweapon, fighting and threatening other prisoners, throwing\nliquids on prison guards, indecent exposure, disobeying orders,\nand insolence. J.A. 20–30. Reid has often been placed in the\nSpecial Housing Unit (SHU) of various prisons, for either\ndisciplinary or administrative reasons.\n\n In March 2015, Reid filed a lawsuit arising from his\ntreatment in the SHUs of prisons in Arizona, California,\nIndiana, Kentucky, Louisiana, North Carolina, Oklahoma, and\nVirginia. Reid alleged that he was denied magazines and\nexercise pursuant to informal BOP policy and that he was often\ndenied prompt access to administrative complaint forms. Reid\n\n 2\nclaimed that these various deprivations violated BOP\nregulations and a formal policy statement. He sought\ndeclaratory and injunctive relief, but not damages.\n\n After the complaint was filed, Reid was transferred to a\nprison in Florida and then to another prison in Pennsylvania.\nReid has never sought to amend his complaint to add\nallegations about his treatment at either of those institutions.\n\n The government moved to dismiss or for summary\njudgment on various grounds, including mootness. Reid cross-\nmoved for summary judgment. In these motions, both parties\nintroduced documents and affidavits detailing Reid’s past\ntreatment at BOP prisons.\n\n The district court dismissed the case as moot. It invoked\nour precedents holding that an inmate’s release or transfer from\na prison normally moots prospective challenges to conditions\nat that prison. See, e.g., Scott v. District of Columbia, 139 F.3d\n940, 941 (D.C. Cir. 1998). This rule is merely one specific\napplication of the general mootness principle: “A case\nbecomes moot—and therefore no longer a ‘Case’ or\n‘Controversy’ for purposes of Article III—when the issues\npresented are no longer ‘live’ or the parties lack a legally\ncognizable interest in the outcome.” Already, LLC v. Nike,\nInc., 568 U.S. 85, 91 (2013) (quotation marks omitted).\n\n II\n\n In support of Reid, a court-appointed amicus advances two\ndistinct arguments to avoid mootness. One argument is that\nthis case never became moot because Reid seeks to challenge\nnot only specific past deprivations, but also an ongoing policy\nto inflict similar deprivations at all BOP prisons. Another\nargument is that this case falls within an exception to mootness\n\n 3\nbecause the past deprivations involve controversies that are\ncapable of repetition yet evading review. 1\n\n My colleagues credit the second argument, at least in the\ncurrent procedural posture of this case, and they do not reach\nthe first argument. I would reject both. I begin with the policy\npoint because, as explained below, unless Reid can plead and\nprove that BOP has a nationwide policy to violate the\nregulations at issue in this case, he cannot show that his specific\npast disputes are capable of repetition.\n\n A\n\n The complaint frames a challenge to ongoing policies.\nReid alleges a “BOP policy” that “prisoners housed in SHU\nmay not have magazines,” in violation of a regulation\nproviding that they may. J.A. 7. Likewise, Reid alleges a\n“BOP policy” to restrict inmates’ exercise as punishment for\nminor infractions of prison rules, in violation of a written\npolicy statement that “[r]estriction or denial of exercise is not\nused as punishment.” J.A. 8–9. Finally, Reid alleges that,\n“[o]n many occasions,” he was denied prompt access to forms\nfor filing grievances. J.A. 9. Reid does not further describe\nthese alleged policies. Yet his amicus contends that this case\npresents justiciable challenges to all of them.\n\n 1\n\n If “the specific conduct that gave rise to the case has\nceased,” a plaintiff nonetheless may seek prospective relief “as\nto an ongoing policy” authorizing the conduct. Del Monte\nFresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.\n\n1\n Reid has forfeited any argument based on the voluntary-cessation\nexception to mootness. Ante at 8 n.4.\n\n 4\nCir. 2009). But the plaintiff must establish both that he “has\nstanding to bring such a forward-looking challenge” and that\n“the [challenge] is ripe.” City of Houston v. HUD, 24 F.3d\n1421, 1429 (D.C. Cir. 1994). Standing requires an injury that\nis “concrete, particularized, and actual or imminent,” among\nother things. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409\n(2013) (quotation marks omitted). Ripeness requires both an\nimpending injury and an issue that is presently fit for judicial\nresolution. See Texas v. United States, 523 U.S. 296, 300–01\n(1998). Without pleading and proving that an ongoing policy\nexists, the plaintiff cannot satisfy these basic requirements, and\nthe prospective challenge likewise would fail on the merits.\n\n Standing and ripeness must be “supported in the same way\nas any other matter on which the plaintiff bears the burden of\nproof, i.e., with the manner and degree of evidence required at\nthe successive stages of the litigation.” Lujan v. Defenders of\nWildlife, 504 U.S. 555, 561 (1992). Thus, on a motion to\ndismiss, the plaintiff must allege well-pleaded facts that\nsupport a plausible inference of standing and ripeness. See\nAshcroft v. Iqbal, 556 U.S. 662, 677–84 (2009); Bell Atl. Corp.\nv. Twombly, 550 U.S. 544, 555–63 (2007). Confirming this\npoint, we have held that the pleading requirements of Twombly\nand Iqbal apply to questions of standing. See, e.g., Hancock v.\nUrban Outfitters, Inc., 830 F.3d 511, 513 (D.C. Cir. 2016) (at\nthe pleading stage, a plaintiff must “‘state[ ] a plausible claim’\nthat each element of standing is satisfied” (quoting Iqbal, 556\nU.S. at 678–79)). Likewise, on summary judgment, the\nplaintiff must adduce sufficient evidence from which the trier\nof fact could reasonably find standing and ripeness. See, e.g.,\nAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–52 (1986).\n\n Two aspects of Twombly and Iqbal are important here.\nFirst, courts do not accept as true a complaint’s legal\nconclusions, “mere conclusory statements,” or “[t]hreadbare\n\n 5\nrecitals of the elements” of a claim. Iqbal, 566 U.S. at 678.\nIncluded in these categories are naked assertions of unlawful\nmotive, see id. at 680–82, or agreement, see Twombly, 550 U.S.\nat 551. Second, any specific factual allegations falling outside\nthese categories must establish a “plausible” claim—\nsomething “more than a sheer possibility that a defendant has\nacted unlawfully.” Iqbal, 556 U.S. at 678. For example,\n“parallel conduct does not suggest conspiracy” in antitrust\ncases, for it is fully consistent with independent action in\ncompetitive markets. Twombly, 550 U.S. at 557, 566–70.\nLikewise, the fact that “thousands of Arab Muslim men” were\ndetained after the September 11 attacks was “no surprise”\ngiven the identities of the attackers, and thus did not support a\nplausible inference of unconstitutional discrimination. Iqbal,\n556 U.S. at 681–82. In both instances, the allegations failed to\nnegate an “obvious alternative explanation” besides unlawful\nconduct. Id. at 682 (quoting Twombly, 550 U.S. at 567).\n\n 2\n\n Under these standards, Reid failed to plausibly allege any\nunlawful BOP policies. To begin, it is not enough merely to\nassert that unlawful policies exist, just as it was not enough\nmerely to assert the existence of a conspiracy in Twombly or an\nillicit motive in Iqbal. Rather, the bare allegation of an\nunlawful policy is a legal conclusion or conclusory statement.\nSee, e.g., Plair v. City of New York, 666 F.3d 631, 637 (9th Cir.\n2012); McCauley v. City of Chicago, 671 F.3d 611, 616–17\n(7th Cir. 2011). Even two decades before Twombly, this Court\nmade clear that “more than a nebulous assertion of the\nexistence of a ‘policy’ is required to establish standing.” Haase\nv. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987). Thus, the\nallegation that Reid was denied magazines and exercise “per\nBOP policy,” J.A. 7–8, is plainly insufficient. And the\nstatement that Reid was denied prompt access to administrative\n\n 6\nforms “[o]n many occasions,” J.A. 9, is even less substantial,\nas it fails to allege a policy even in conclusory terms.\n\n The complaint further alleges that prison officials\n“invariably informed” Reid that they were following BOP\npolicies in denying him magazines and exercise. J.A. 7–8. Yet\nReid says nothing more about who said so, when, where, how\noften, and under what circumstances. This too falls short, for\nTwombly and Iqbal require enough “specific facts” to “present\na story that holds together.” McCauley, 671 F.3d at 616\n(quotation marks omitted). These vague references to hearsay\nstatements tell no such story. If pleading “there is a policy” is\nnot enough, then neither is pleading “I was invariably informed\nthat there is a policy,” which is all Reid has done here.\n\n Nor do Reid’s allegations about specific incidents support\nany plausible inference of a policy. As for magazines, the\ncomplaint alleges only that, at eight facilities, “prison officials\nrefused to deliver magazines sent from the publisher to\nPetitioner.” J.A. 7. Entirely unstated are the involved officials;\nthe names, number, or types of the magazines; and the\nfrequency or surrounding circumstances of any refusal to\ndeliver. As for exercise, Reid alleges only denials for\ninfractions “such as having a string hanging from the shower,\na piece of paper in the window, not having his bed made to the\nsatisfaction of the prison guard, or any other matter of cell\ndecorum, whether real or imagined.” J.A. 8. On its face, this\nsuggests not a nationwide policy, but individual decisions\nbased on the facts and circumstances surrounding different\nprisoners in different prisons at different times.\n\n The relevant BOP regulations further undercut any\ninference of an illicit nationwide policy. They permit inmates\nto “receive softcover publications” such as magazines, 28\nC.F.R. § 540.71(a)(1), but this privilege is limited in several\n\n 7\nrespects. For one, a warden may reject publications deemed\n“detrimental to the security, good order, or discipline” of the\nprison, as well as publications that “might facilitate criminal\nactivity.” Id. § 540.71(b). A warden also “may set limits\nlocally (for fire, sanitation or housekeeping reasons) on the\nnumber or volume of publications an inmate may receive or\nretain in his quarters.” Id. § 540.71(f). Finally, a warden may\nrestrict an inmate’s incoming correspondence “based on\nmisconduct or as a matter of classification.” Id. § 540.15(a).\nThe regulations further provide that a SHU inmate may receive\nfive hours of outdoor exercise per week, id. § 541.31(g), and a\nBOP policy document states that “[r]estriction or denial of\nexercise is not used as punishment,” BOP Program Statement\n5270.11, at 12 (Nov. 23, 2016). But this privilege is also\nsignificantly limited, as the regulation further states that\nexercise may be denied “if it is determined that [the inmate’s]\nuse of exercise privileges threatens safety, security, and orderly\noperation of a correctional facility, or public safety.” 28 C.F.R.\n§ 541.31(g). Reid does not challenge any of these limitations.\n\n Given the narrow, qualified nature of these regulatory\nprivileges, a large number of deprivations does not plausibly\nsuggest illegal nationwide policies. Any such inference would\nignore an obvious alternative explanation—that the\ndeprivations resulted from individual applications of the\nregulations to the circumstances of different prisoners in\ndifferent prisons at different times. The regulations themselves\nrequire such contextual judgments, and Reid’s allegations\nprovide no basis to suspect anything more sinister.\n\n 3\n\n Reid’s thin allegations of amorphous policies also fail to\nestablish ripeness. In Worth v. Jackson, 451 F.3d 854 (D.C.\nCir. 2006), we held unripe a prospective challenge to an alleged\n\n 8\ninformal policy of using race and sex preferences in hiring. As\nwe explained, “we cannot assess a facial challenge to an\nunwritten policy that by definition has no face.” Id. at 862. We\nconcluded that, absent “concrete application” of the policy, we\ncould not “ascertain its contours.” Id. In City of Houston, we\nlikewise held unripe a prospective challenge to an alleged\ninformal policy to deny hearings in vaguely specified\ncategories of cases. 24 F.3d at 1431 (“There is simply no way\nfor this court to consider whether HUD can act without a\nhearing in some amorphous category of ‘cases such as this\none,’ because the actual contours of the cases within the\ncategory are potentially determinative of their outcome.”).\nHere, Reid’s complaint similarly alleges an unwritten policy\nthat is uncertain in its scope and application.\n\n On this point, the amicus invokes Payne Enterprises v.\nUnited States, 837 F.2d 486 (D.C. Cir. 1988), which\nadjudicated a prospective challenge to an Air Force policy of\nrefusing to release bid abstracts for certain contracts. Id. at 488.\nBut the policy there was written, its scope was undisputed, and\nits application in future cases did not depend on presently\nunknown facts. See id. at 491. None of that is true here.\n\n 4\n\n The evidentiary submissions undercut Reid’s policy claim\neven further. Both parties moved for summary judgment and,\nin so doing, introduced documents and affidavits detailing\nReid’s various disputes with BOP. Reid opposed the\ngovernment’s motion on the merits but did not argue that it was\npremature. Thus, pleadings aside, we could readily reject the\nalleged illegal policy on summary judgment.\n\n The evidentiary materials confirm that Reid’s past disputes\nwith BOP have been localized and fact-intensive. To pick a\nfew examples: Documents indicate that in September 2013,\n\n 9\nofficials at the Jonesville, Virginia prison withheld magazines\nfrom Reid because of security concerns about “inmates\ncontinuously covering their cell windows and light fixtures,\nwhich causes poor visibility into cells and interferes with staff\nduties.” Reid v. Samuels, No. 15-CV-375 (D.D.C.), ECF Doc.\n23, at 66. In January 2013, officials at the Atwater, California\nprison made a different, safety-related judgment—to withhold\nmagazines from Reid because of concerns about sanitation and\nfire hazards. See id. at 18. By contrast, an official at the\nTucson, Arizona prison where Reid was held from November\n2013 to July 2015 testified that inmates there were “not denied\naccess to their mail,” and Reid had neither bought nor been sent\nany magazines. J.A. 49. The disputes about exercise were\nsimilarly varied: Atwater officials revoked Reid’s privileges\nafter he obstructed the light fixture in his cell. Reid, No. 15-\nCV-375, ECF Doc. 23, at 32. According to Reid, officials at\nother prisons did the same after he put “paper on the wall, light,\nsink, etc.” J.A. 68. A Tucson official testified that Reid was\nnot denied exercise but voluntarily refused it. J.A. 50.\n\n To be sure, Reid disputes much of this evidence. For\nexample, he argues that magazines should not have been\n“singled out” for removal in Jonesville because other objects\ncould have been used to cover lights and windows. Reid, No.\n15-CV-375, ECF Doc. 23, at 68. He claims that, while in\nTucson, he was given a free subscription to “Z Magazine” and\nnever refused exercise. J.A. 69–70. He contends that a\ncellmate obstructed the light in Atwater. Reid, No. 15-CV-375,\nECF Doc. 23, at 34. Whatever the merits of these disputes,\nthey turn on particular facts involving individual prisons and\nprisoners. Neither the disputes themselves, nor any other\nrecord evidence, suggest illegal nationwide policies.\n\n 10\n B\n\n Without any policy that could unify Reid’s various\nindividual disputes with BOP, this action cannot fit within the\nmootness exception for cases that are capable of repetition yet\nevading review. Under that doctrine, there must be a\nreasonable expectation that the same “legal controversy”\nbetween the same parties will reoccur. See, e.g., Del Monte,\n570 F.3d at 322–24. Only then can the doctrine be squared\nwith “the Constitution’s requirement, set forth in Article III,\nthat courts resolve only continuing controversies between the\nparties.” People for the Ethical Treatment of Animals v.\nGittens, 396 F.3d 416, 422 (D.C. Cir. 2005) (PETA).\n\n Our decisions confirm that, to be capable of repetition, a\nlegal controversy must be fixed, knowable in advance, and thus\npredictably repeatable. For example, in Del Monte, we held\nthat a dispute whether certain statutory deadlines were\nmandatory was capable of repetition. 570 F.3d at 324–35.\nLikewise, in Christian Knights of the Ku Klux Klan v. District\nof Columbia, 972 F.2d 365 (D.C. Cir. 1992), we held capable\nof repetition a dispute whether a permit to march along the\nNational Mall could be restricted because of threatened\naudience violence. Id. at 371. By contrast, in PETA, we held\nthat a past controversy, which arose from the exclusion of a\nsculpture from an exhibit, was too “fact-specific” to be capable\nof repetition. 396 F.3d at 424. The plaintiff alleged\nimpermissible content discrimination in how the formal\nselection criteria had been applied in practice. See id. at 423.\nAfter summarizing the various factual disputes embedded in\nthe controversy, we stated: “To conclude that a dispute like\nthis would arise in the future requires us to imagine a sequence\nof coincidences too long to credit.” Id. at 424.\n\n 11\n PETA governs this case. Setting aside the deficient policy\nallegations, Reid does not challenge anything that could give\nrise to a discrete, predictably repeatable legal controversy. As\nexplained above, he claims that BOP has violated regulations\nthat require case-by-case inquiries into prison safety, security,\norder, discipline, sanitation, and housekeeping. Not\nsurprisingly, the application of those regulations has spawned\ndistinct, fact-intensive controversies. For example, the\nJonesville dispute about the use of magazines as window\ncovers is different from the Atwater dispute about sanitation\nand fire hazards, and both of those are different from the\nTucson dispute about what magazines were mailed to Reid.\nLikewise, the Tucson dispute about whether Reid refused\nexercise is different from the Atwater dispute about which\ninmate obstructed the lights, and both of those are different\nfrom other disputes about whether Reid adequately maintained\nhis cell. Because no discrete, identifiable legal controversy is\ncapable of repetition, the mootness exception does not apply.\n\n C\n\n My colleagues reverse on narrow grounds, so my\ndisagreement with them is also narrow. They reserve the\nquestion whether Reid has adequately pleaded a policy under\nthe plausibility standard articulated in Twombly and Iqbal.\nAnte at 11. Likewise, they reserve the question whether Reid’s\npolicy allegations could survive a motion for summary\njudgment. Ante at 12. I would have decided those questions,\nbut they remain open on remand.\n\n The disagreement about how to apply the mootness\nexception for cases that are capable of repetition yet evading\nreview is also narrow. My colleagues do not dispute two\ncritical points: the legal controversy itself must be predictably\nrepeatable, and Reid’s claim to satisfy this requirement\n\n 12\ndepends on his policy allegations. My colleagues invite the\ndistrict court on remand to probe the facts relevant to\nmootness—including the policy allegations—either on a\nmotion to dismiss or on summary judgment. Ante at 11–12.\nSo, the mootness question also remains open.\n\n Ultimately, my colleagues and I disagree over how to\napply the mootness exception in the current procedural posture\nof this case, which they describe as one involving a “motion to\ndismiss the Complaint at the pleadings stage.” Ante at 8. My\ncolleagues recognize that the party opposing mootness bears\nthe burden of proving that the exception applies. Ante at 7. But\nthey note that a complaint, which is filed before the alleged\nmooting event, obviously cannot plead a mootness exception.\nAnte at 8. So, they conclude, we should consider only whether\nthere is any “logical deficiency” in the plaintiff’s argument for\nsatisfying the exception. Ante at 9–11. They derive this\nforgiving standard from a statement in Haase that “[a]ssuming\nthe theory presented in the complaint is not itself inherently\nflawed, the standing inquiry is ordinarily now complete.” 835\nF.2d at 907; see ante at 7.\n\n This analysis seems to me mistaken. For one thing, Haase\nwas a case about initial standing, so it has nothing to say about\nhow courts should assess intervening facts bearing on\nmootness. Its inquiry whether the plaintiff’s theory is\n“inherently flawed” reflects not a distinction between standing\nand mootness, but a general premise that motions to dismiss do\nnot test for pleading sufficiency. That premise was correct\nwhen Haase was decided in 1987, see Conley v. Gibson, 355\nU.S. 41 (1957), but it did not survive Twombly and Iqbal.\n\n In this case, the complaint alleges illicit policies that pre-\ndate the mooting event of Reid’s prison transfer, so there is\nnothing unfair about assessing whether those allegations were\n\n 13\nplausibly pleaded. And, if intervening factual developments\nhad strengthened Reid’s case, he could have sought leave to\namend the complaint, which he did not. Finally, the record\nincludes not only the government’s motion to dismiss, but also\nthe parties’ cross-motions for summary judgment, which\namply develop the facts relevant to mootness. As noted above,\nReid has never claimed that the government’s motion was\npremature. So, I can see no reason to apply only a minimal\nscreen for “logical deficiency” at this juncture, thereby\nartificially prolonging the life of this moot case.\n\n Because nothing prevents us from resolving the question\nof mootness now, I would affirm the district court’s order\ndismissing this case as moot.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364683/", "author_raw": "KATSAS, Circuit Judge, dissenting"}]}	GRIFFITH	WILKINS	KATSAS	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4587430/	Published	1	1	0	0	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
4,588,402	Gordon C. REID, Appellant v. Hugh J. HURWITZ, Acting Director, Federal Bureau of Prisons, Appellee	Gordon Reid v. Hugh J. Hurwitz	2019-02-05	17-5012	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Griffith, Wilkins, Katsas", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887977/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887978/", "author_raw": ""}, {"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued May 17, 2018 Decided February 5, 2019\n\n No. 17-5012\n\n GORDON C. REID,\n APPELLANT\n\n v.\n\n HUGH J. HURWITZ, ACTING DIRECTOR, FEDERAL BUREAU OF\n PRISONS,\n APPELLEE\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:15-cv-00375)\n\n\n Caleb P. Redmond, Student Counsel, argued the cause as\namicus curiae in support of appellant. With him on the briefs\nwere Erica Hashimoto, Director, and Paola Pinto and Sean\nStein, Student Counsel.\n\n Daniel Schaefer, Assistant U.S. Attorney, argued the cause\nfor appellee. With him on the brief were Jessie K. Liu, U.S.\nAttorney, and R. Craig Lawrence, Assistant U.S. Attorney.\n\n Before: GRIFFITH, WILKINS and KATSAS, Circuit Judges.\n\n Opinion for the Court filed by Circuit Judge WILKINS.\n\n 2\n Dissenting opinion filed by Circuit Judge KATSAS.\n\n WILKINS, Circuit Judge: This case concerns whether the\nDistrict Court properly dismissed based on mootness the claims\nof an incarcerated prisoner. Because the allegations in Gordon\nReid’s Complaint logically fall within a mootness exception for\nclaims “capable of repetition, yet evading review,” we reverse\nthe decision of the District Court and remand the case for\nfurther proceedings.\n\n I.\n\n In reviewing the District Court’s dismissal, we “accept all\nof the factual allegations in the complaint as true.” Jerome\nStevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.\n2005) (alteration and citation omitted). The facts recounted\nhere come from the Complaint or undisputed submissions in\nthe record. In 2008, the United States District Court for the\nDistrict of New Hampshire sentenced Gordon Reid to\nincarceration for a term of 220 months, followed by three years\nof supervised release, for the crime of Interference with\nCommerce by Threats of Violence. Reid began serving that\nsentence on May 6, 2008, when he was delivered to the U.S.\nPenitentiary McCreary in Kentucky. Id. Sometimes for\ndisciplinary reasons, and other times for administrative ones,\nReid was housed repeatedly in Special Housing Units (SHUs)\nat McCreary and the other Bureau of Prisons (BOP) facilities,\nwhere he has continued serving his sentence.\n\n Reid, proceeding pro se, filed a Complaint in the District\nCourt for the District of Columbia on March 16, 2015.1 At the\ntime, Reid was incarcerated at the U.S. Penitentiary in Tucson,\n\n1\n Reid’s filing was styled a “Petition for Declaratory and Injunctive\nRelief.” J.A. 6. The District Court construed it as a Complaint.\n\n 3\nArizona. He alleged that BOP had violated its own policies\nand procedures in three ways: (1) BOP had failed to deliver his\nmagazine subscriptions while he was confined in SHUs, thus\nviolating 28 C.F.R. § 540.71 and BOP Program Statement\n5266.11 (Nov. 9, 2011); (2) BOP had deprived him of outside\nexercise while he was confined in SHUs, violating 28 C.F.R.\n§ 541.31(g) and BOP Program Statement 5270.10 (Aug. 1,\n2011); and (3) BOP deprived him of meaningful access to the\nadministrative remedy procedures in violation of 28 C.F.R.\n§ 542.10 and BOP Program Statement 1330.18 (Jan. 6, 2014).\nWhen questioned about these violations, Reid alleges BOP\npersonnel “invariably” claimed that they were complying with\n“BOP Policy.” J.A. 7-8. We liberally construe the pro se\nComplaint as asserting not only a broad challenge to a\nnationwide BOP policy or practice, but also a declaratory claim\nwith respect to the individual deprivations Reid suffered in\nSHUs. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per\ncuriam). The Complaint asked for declaratory, injunctive, and\nmandamus relief to remedy these alleged violations.\n\n In total, Reid appears to have been transferred in and out\nof a SHU over twenty times from August 1, 2007, to July 19,\n2016, under either administrative detention or disciplinary\nsegregation status. This amounted to at least 764 days in a\nSHU, and some of those confinement periods postdated the\nfiling of his Complaint in the District Court.\n\n BOP filed a motion to dismiss or, in the alternative, for\nsummary judgment, arguing that Reid’s claims were moot.\nBOP argued that Reid was “no longer confined at USP Tucson,\nhis place of confinement when he filed this civil action,” or at\nany of the other facilities where the alleged violations occurred.\nMot. to Dismiss at 15-16, No. 1:15-cv-375 (RMC) (D.D.C.\nfiled Sept. 28, 2015), ECF No. 14. BOP concluded that Reid’s\n“allegations concerning how staff at previous institutions\n\n 4\nhandled the processing of inmates’ incoming magazines, how\nSHU staff allocated outside recreation time, or Unit Team’s\nprotocol for conducting rounds in SHU no longer present[ed] a\ncase or controversy,” and argued that the mootness exceptions\ndid not apply. Id. at 16.\n\n In response to BOP’s motion, the District Court issued an\norder to “advise the pro se Plaintiff of his obligations” under\nthe Rules, as well as the consequences for failing to follow\nthem. Order at 1, 3, No. 1:15-cv-375 (RMC) (D.D.C. filed Oct.\n1, 2015), ECF No. 15. The District Court informed Reid that\nhe needed to file a response in opposition to the motion by\nNovember 30, 2015, and advised him of all relevant Federal\nRules of Civil Procedure and local rules regarding opposition\nto motions to dismiss and for summary judgment. Id.\n\n After initially granting BOP’s motions because of Reid’s\nfailure to timely respond, the District Court accommodated\nReid’s late filing of a response opposing BOP’s motions. See\nOrder at 1-2, No. 1:15-cv-375 (RMC) (D.D.C. filed June 2,\n2016), ECF No. 21. In his brief opposing dismissal and\nsupporting his cross-motion for summary judgment, Reid\nargued that the case was not moot because he was challenging\nongoing practices of BOP. Mot. to Vacate Judgment at 106,\nNo. 1:15-cv-375 (RMC) (D.D.C. filed May 6, 2016), ECF No.\n20. He also argued that the case was an exception to the\nmootness doctrine: “That these controversies are capable of\nrepetition is a matter of historical fact rather than deduction for\nPlaintiff has, in fact, been repeatedly housed in SHU units\nacross the country where, time and again,” BOP had committed\nthe same violations. Id. at 109.\n\n The District Court ordered BOP to file an opposition to\nReid’s cross-motion for summary judgment, combined with\nBOP’s opposition to Reid’s motions to strike and reply in\n\n 5\nsupport of its motion to dismiss. In its filing, BOP stated that\n“[n]ormally, a prisoner’s transfer or release from a prison\nmoots any claim he might have for equitable relief arising out\nof the conditions of his confinement in prison.” Def.’s Opp’n\nto Pl’s Cross Mot. for Summ. J. & Reply in Supp. of Def.’s\nMot. to Dismiss (Def.’s Cross Opp’n & Reply) at 7, No. 1:15-\ncv-375 (RMC) (D.D.C. filed July 21, 2016), ECF No. 25; see\nalso Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir.\n1998). BOP responded to Reid’s argument that his claims were\nnot moot due to changing circumstances by reiterating that\nReid had since been transferred to another facility and out of\nthe SHU. Def.’s Cross Opp’n & Reply 7-8. BOP argued that\n“with the exception of one night, [Reid] ha[d] not been\nconfined in SHU at all since his transfer to USP Coleman.” Id.\nat 8 (emphasis in original). BOP stated that Reid’s claims were\n“linked exclusively to his confinement in the SHUs and\ntherefore no longer present[ed] a ‘live’ controversy,” as Reid\nwas no longer confined in SHUs. Id. at 9. BOP also pointed\nout that Reid had not alleged continued violations since his\n(then) latest transfer. Id. In support, BOP attached an affidavit\nstating that Reid was no longer housed in a SHU and had been\nin the general population at the Coleman facility with the\nexception of one twelve-hour period. Decl. of An Tran at 1-5,\nNo. 1:15-cv-375 (RMC) (D.D.C. filed July 21, 2016), ECF No.\n25-1. BOP also attached inmate records with data it had not\noriginally provided in support of its motion. Id. at 8-50.\n\n The District Court instructed Reid that he could file a reply\nin support of his cross motion for summary judgment before\nAugust 29, 2016. Order at 2, No. 1:15-cv-375 (RMC) (D.D.C.\nfiled June 2, 2016), ECF No. 21. On November 8, 2016 – over\ntwo months after the deadline for Reid’s reply brief – the\nDistrict Court issued an order granting BOP’s motion to\ndismiss Reid’s claims as moot and denying his cross motion for\nsummary judgment. The District Court noted that Reid had\n\n 6\n“asserted nothing” to contradict BOP’s argument that “for the\npast straight year” Reid had not been “confined to the Special\nHousing Units that gave rise to his claims.” Reid, 2016 WL\n6602614, at 1. Thus, the District Court held:\n\n “Normally, a prisoner’s transfer or release from\n a prison moots any claim he might have for\n equitable relief arising out of the conditions of\n his confinement in that prison.” And in the\n absence of “a cognizable cause of action,” a\n plaintiff has “no basis upon which to seek\n declaratory relief.”\n\nId. (citations omitted).\n\n On appeal, Amicus for Reid2 argues that the District Court\ndid not meet its obligations for litigation involving a pro se\nplaintiff,3 and that Reid’s claims avoid mootness because they\nare capable of repetition, yet evading review or, alternatively,\nbecause the voluntary cessation doctrine applies.\n\n II.\n\n We review de novo the District Court’s dismissal for\nmootness. Schmidt v. United States, 749 F.3d 1064, 1068 (D.C.\nCir. 2014). “Under Article III of the United States Constitution\n\n2\n We thank Erica Hashimoto, Paola Pinto, Caleb P. Redmond, and\nSean Stein for their work on this appeal.\n3\n The District Court was very generous with Reid, giving him\nadditional instructions and leeway with late filings. The District\nCourt not only complied with, but also went above and beyond, our\nguidance for managing the docket of a pro se case. See Moore v.\nAgency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993); Neal v.\nKelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992).\n\n 7\nwe ‘may only adjudicate actual, ongoing controversies.’”\nDistrict of Columbia v. Doe, 611 F.3d 888, 894 (D.C. Cir.\n2010) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)).\nUnder the mootness doctrine, we cannot decide a case if\n“events have so transpired that the decision will neither\npresently affect the parties’ rights nor have a more-than-\nspeculative chance of affecting them in the future.” Clarke v.\nUnited States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)\n(quotation marks omitted). The party seeking jurisdictional\ndismissal must establish mootness, while the opposing party\nhas the burden to prove that a mootness exception applies.\nHoneywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d\n568, 576 (D.C. Cir. 2010).\n\n The Supreme Court has carved out one such exception for\nclaims that are “capable of repetition, yet evading review.”\nSpencer v. Kemna, 523 U.S. 1, 17 (1998). “The exception\napplies when: ‘(1) the challenged action is in its duration too\nshort to be fully litigated prior to its cessation or expiration, and\n(2) there is a reasonable expectation that the same complaining\nparty will be subject to the same action again.’” Doe, 611 F.3d\nat 894 (quoting Jenkins v. Squillacote, 935 F.2d 303, 307 (D.C.\nCir. 1991)). At the motion to dismiss stage, courts assess\njusticiability based in part on “the theory of injury presented in\nthe complaint” and “the facts alleged in support of the claim.”\nHaase v. Sessions, 835 F.2d 902, 907 (D.C. Cir. 1987)\n(reversing district court’s 12(b)(1) dismissal because the court\n“did not adequately assess whether the alleged policy pose[d]\na realistic threat to [the plaintiff]”). Although Haase applies\nthis framework to constitutional standing, not mootness, they\nare “related concepts” because both go to the plaintiff’s injury.\nGarden State Broad. Ltd. P’ship v. FCC, 996 F.2d 386, 394\n(D.C. Cir. 1993). If anything, the standing doctrine is stricter\nthan the mootness doctrine. If the theory of justiciability is\n\n 8\n“not itself inherently flawed, the [Article III] inquiry is\nordinarily . . . complete.” Haase, 835 F.2d at 907.\n\n BOP urges us to hold Reid’s factual allegations, which it\nfinds “speculative,” to a stricter standard, such as the\nplausibility standard articulated in Ashcroft v. Iqbal, 556 U.S.\n662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544\n(2007). But it is impossible for a plaintiff, when she initially\nfiles a Complaint, to make plausible allegations supporting a\nmootness exception. The District Court focused not on the\nallegations Reid made in his Complaint, but rather on the legal\ntheory of justiciability. The District Court dismissed the\npleadings on the basis that Reid’s transfer from the SHU\nrendered inapplicable the “capable of repetition, yet evading\nreview” exception as a matter of law. Because we disagree and\nsee no logical flaw in the theory of why the mootness exception\nmay apply, we reverse the District Court’s decision to dismiss\nthe Complaint at the pleadings stage.4\n\n First, Reid adequately alleges that the challenged action is\ntoo fleeting to be fully litigated. To address whether a claim\nevades review, we ask whether “the challenged action was in\nits duration too short to be fully litigated prior to its cessation\nor expiration.” Weinstein v. Bradford, 423 U.S. 147, 149\n(1975). In Doe, we noted that “there can be no doubt that a\none-year placement order under the [Individuals with\nDisabilities Education Act] is, by its nature, too short in\nduration to be fully litigated prior to its expiration.” 611 F.3d\nat 894-95. Based on the information provided by BOP, Reid’s\nlongest stay in a SHU was 120 days, and many of his other\n\n4\n Although Amicus presents an argument in favor of applying the\nvoluntary cessation doctrine under Aref v. Lynch, 833 F.3d 242 (D.C.\nCir. 2016), this argument was not raised below and is thus forfeited.\nSee Keepseagle v. Vilsack, 815 F.3d 28, 36 (D.C. Cir. 2016).\n\n 9\nstays were for much shorter time periods. Amicus Br. 8-10, 33.\nWe agree with Amicus that this short duration “evades even\ndistrict court review, let alone review by this Court and the\nSupreme Court.” Id. at 33. The short durations of Reid’s SHU\nplacements clearly meet the threshold.\n\n Second, we see no logical deficiency in Reid’s allegations\nthat he reasonably expects to be subjected to the same\nchallenged deprivations in the future. See FEC v. Wisc. Right\nto Life, Inc., 551 U.S. 449, 463-64 (2007). As Amicus points\nout, Reid demonstrated that BOP had placed him in the SHU\n“in almost every facility that confined him for longer than\ntwenty-eight days, including four instances of segregation after\nhe filed his complaint.” Amicus Br. 31.\n\n On this point, Olmstead v. L.C. ex rel. Zimring, 527 U.S.\n581 (1999), is instructive. In Olmstead, the Supreme Court\nnoted that a claim was not moot when the petitioners were\n“currently receiving treatment in community-based programs”\nbecause of “the multiple institutional placements [the\npetitioners] ha[d] experienced,” making the claims capable of\nrepetition, yet avoiding review. Id. at 594 n.6. Thus, even\nthough the petitioners were no longer in an institutional\nplacement, their claims avoided mootness due in part to the\nmultiple times that they had experienced institutional\nplacements in the past. Reid’s circumstance is similar.\n\n BOP recognizes that “[a] prisoner’s transfer to another\nfacility or unit will not moot a claim for equitable relief . . . if\nthe very same policy, practice, or condition continues to apply\nto the same prisoner’s confinement following his or her transfer\nto another unit or facility.” Appellee’s Br. 25 (citing Scott, 139\nF.3d at 941). But, BOP contends, “[o]n this record, the chance\nthat Reid would again be subjected to the three deprivations in\n\n 10\nSHU that he challenged was entirely speculative.” Id. at 26;\nsee id at 36.\n\n The BOP’s argument ignores that Reid’s complaint\nidentifies not only single instances but also BOP’s alleged\npolicy or practice of violating its own regulations to the\ndetriment of Reid. In particular, Reid has alleged three key\nfacts. First, he has been housed at eight different SHUs since\n2008. Second, he has suffered a uniform set of deprivations at\neach SHU that contradict BOP’s written regulations. Third,\neach time he has suffered a deprivation, he alleges that BOP\nofficials justify the deprivations based on “BOP policy.” J.A.\n7-8. Having been placed in a SHU in myriad different BOP\ninstitutions, subject each time to a restriction allegedly imposed\nunder a purported BOP policy or practice contravening BOP\nregulations, Reid has proffered a logical theory that the\nchallenged actions reasonably will recur despite his current\ntransfer out of the SHU. See, e.g., Olmstead, 527 U.S. at 594\nn.6; Doe v. Sullivan, 938 F.2d 1370, 1378-79 (D.C. Cir. 1991).\n\n III.\n\n Both the District Court and the government on appeal have\nfailed to grapple with Reid’s claim that he was repeatedly\nsubjected to deprivations in the SHU due to an ongoing policy\nor practice of the BOP. Instead, the government argues that\nReid is unlikely to be subjected to those conditions again\nbecause his past experience is insufficiently predictive of the\nlikelihood of Reid returning to a SHU. See Appellee’s Br. 39-\n42 (“Once the conditions of confinement that an inmate\nchallenges cease completely at some point[,] an expectation of\nrecurrence is no longer reasonable.” (emphasis in original)).\n\n In dismissing Reid’s Complaint under Rule 12(b)(1), the\nDistrict Court simply stated that, “[n]ormally, a prisoner’s\n\n 11\ntransfer or release from a prison moots any claim he might have\nfor equitable relief arising out of the conditions of his\nconfinement in that prison.” Although this is “normally” true,\nit is not true when a prisoner alleges he has been subject to\nthose conditions in multiple BOP facilities, along with an\nalleged policy or practice of violating regulations that would\napply to Reid at any BOP facility in the future. The District\nCourt erred by dismissing Reid’s claims as moot when, as a\nlogical matter, his pleadings as a whole are capable of\nrepetition, yet evading review. See Haase, 835 F.2d at 907-08.\n\n The District Court has multiple options on which to\nproceed on remand. The government filed various motions\nunder Rule 12 and Rule 56, and it may renew its motions when\nthis case returns to the District Court.\n\n Although Reid has presented a sound legal theory for why\nhis claims are not moot, the District Court may have concerns\nabout “the facts alleged in support of” jurisdiction. Id. at 907.\nThe District Court is free “at the motion to dismiss stage” to\ninquire into Reid’s asserted facts in support of the mootness\nexception. Id. As a related but separate matter, the District\nCourt may doubt Reid’s standing to plead a broad-based attack\non the alleged BOP policy or practice. A plaintiff challenging\n“an ongoing policy must . . . demonstrate both that ‘the request\nfor declaratory relief is ripe’ and that [he has] ‘standing to bring\nsuch a forward-looking challenge.’” Conservation Force, Inc.\nv. Jewell, 733 F.3d 1200, 1206 (D.C. Cir. 2013) (quoting Del\nMonte Fresh Produce Co. v. United States, 570 F.3d 316, 321\n(D.C. Cir. 2009)). We have not determined the minimal\nrequirements for factual allegations rebutting a mootness\nchallenge that the District Court considers at the motion to\ndismiss stage, but we have held that a plaintiff must plead facts\nplausibly demonstrating standing, see, e.g., Humane Soc’y of\nthe U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). If the\n\n 12\nDistrict Court harbors doubts, it may give Reid “the\nopportunity to plead additional facts” to support jurisdiction.\nHaase, 835 F.2d at 903; see also Moore, 994 F.2d at 877\n(“[L]eave to amend is particularly appropriate when a plaintiff\nproceeds pro se.”).\n\n The District Court further may address the other Rule 12\nmotions. In vacating the decision below, we do not pass\njudgment on whether Reid has plausibly stated policy and\nindividual challenges that survive a Rule 12(b)(6) motion on\nthe merits. It is possible that, on remand, the District Court will\nhold that BOP’s alleged conduct “stops short of the line\nbetween possibility and plausibility of entitlement to relief.”\nSee Twombly, 550 U.S. at 557 (quotation marks omitted). But\nthat is a different question than the one before us now.\n\n The District Court also may wait until summary judgment\nto consider anew both Reid’s standing to assert the policy and\nindividual claims, as well as the BOP’s mootness argument.\n\n *\n\n The District Court erred in dismissing Reid’s Complaint\non the ground of mootness because it alleged a policy or\npractice of violations by the BOP. Reid’s theory for why his\nclaims are not moot is logically sound. See Haase, 835 F.2d at\n907-08. We reverse the decision of the District Court and\nremand the case for further proceedings.\n\n So ordered.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365655/", "author_raw": "Opinion for the Court filed by Circuit Judge WILKINS"}, {"author": "KATSAS, Circuit Judge, dissenting", "type": "dissent", "text": "KATSAS, Circuit Judge, dissenting: Gordon Reid alleges\nthat the Federal Bureau of Prisons has adopted a nationwide\npolicy to violate its own regulations regarding the treatment of\nprisoners. My colleagues reserve the question whether Reid\nhas adequately alleged such a policy. Yet, in assessing\nmootness, they credit the allegation for now and then use it to\ntransform specific past disputes—about Reid’s treatment in\nprisons where he is no longer housed—into a unified, recurring\ncontroversy that may follow Reid from prison to prison.\n\n Respectfully, I am unpersuaded. We should reject Reid’s\nconclusory allegation that BOP has implemented unlawful\nnationwide policies. And without such unifying policies, the\nspecific disputes alleged here are not capable of repetition.\nTherefore, I would affirm the dismissal of this case as moot.\n\n I\n\n In 2008, Reid was convicted of robbing a convenience\nstore at gunpoint. During pretrial detention, “Reid quickly\ndistinguished himself as a combative, disruptive, and violent\ninmate.” Reid v. Strafford Cty. Dep’t of Corr., No. 06-CV-182,\n2008 WL 163042, at 1 (D.N.H. Jan. 15, 2008). Since then,\nwhile incarcerated at various BOP facilities, Reid has amassed\na disciplinary record that includes assault with a dangerous\nweapon, fighting and threatening other prisoners, throwing\nliquids on prison guards, indecent exposure, disobeying orders,\nand insolence. J.A. 20–30. Reid has often been placed in the\nSpecial Housing Unit (SHU) of various prisons, for either\ndisciplinary or administrative reasons.\n\n In March 2015, Reid filed a lawsuit arising from his\ntreatment in the SHUs of prisons in Arizona, California,\nIndiana, Kentucky, Louisiana, North Carolina, Oklahoma, and\nVirginia. Reid alleged that he was denied magazines and\nexercise pursuant to informal BOP policy and that he was often\ndenied prompt access to administrative complaint forms. Reid\n\n 2\nclaimed that these various deprivations violated BOP\nregulations and a formal policy statement. He sought\ndeclaratory and injunctive relief, but not damages.\n\n After the complaint was filed, Reid was transferred to a\nprison in Florida and then to another prison in Pennsylvania.\nReid has never sought to amend his complaint to add\nallegations about his treatment at either of those institutions.\n\n The government moved to dismiss or for summary\njudgment on various grounds, including mootness. Reid cross-\nmoved for summary judgment. In these motions, both parties\nintroduced documents and affidavits detailing Reid’s past\ntreatment at BOP prisons.\n\n The district court dismissed the case as moot. It invoked\nour precedents holding that an inmate’s release or transfer from\na prison normally moots prospective challenges to conditions\nat that prison. See, e.g., Scott v. District of Columbia, 139 F.3d\n940, 941 (D.C. Cir. 1998). This rule is merely one specific\napplication of the general mootness principle: “A case\nbecomes moot—and therefore no longer a ‘Case’ or\n‘Controversy’ for purposes of Article III—when the issues\npresented are no longer ‘live’ or the parties lack a legally\ncognizable interest in the outcome.” Already, LLC v. Nike,\nInc., 568 U.S. 85, 91 (2013) (quotation marks omitted).\n\n II\n\n In support of Reid, a court-appointed amicus advances two\ndistinct arguments to avoid mootness. One argument is that\nthis case never became moot because Reid seeks to challenge\nnot only specific past deprivations, but also an ongoing policy\nto inflict similar deprivations at all BOP prisons. Another\nargument is that this case falls within an exception to mootness\n\n 3\nbecause the past deprivations involve controversies that are\ncapable of repetition yet evading review.1\n\n My colleagues credit the second argument, at least in the\ncurrent procedural posture of this case, and they do not reach\nthe first argument. I would reject both. I begin with the policy\npoint because, as explained below, unless Reid can plead and\nprove that BOP has a nationwide policy to violate the\nregulations at issue in this case, he cannot show that his specific\npast disputes are capable of repetition.\n\n A\n\n The complaint frames a challenge to ongoing policies.\nReid alleges a “BOP policy” that “prisoners housed in SHU\nmay not have magazines,” in violation of a regulation\nproviding that they may. J.A. 7. Likewise, Reid alleges a\n“BOP policy” to restrict inmates’ exercise as punishment for\nminor infractions of prison rules, in violation of a written\npolicy statement that “[r]estriction or denial of exercise is not\nused as punishment.” J.A. 8–9. Finally, Reid alleges that,\n“[o]n many occasions,” he was denied prompt access to forms\nfor filing grievances. J.A. 9. Reid does not further describe\nthese alleged policies. Yet his amicus contends that this case\npresents justiciable challenges to all of them.\n\n 1\n\n If “the specific conduct that gave rise to the case has\nceased,” a plaintiff nonetheless may seek prospective relief “as\nto an ongoing policy” authorizing the conduct. Del Monte\nFresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.\n\n1\n Reid has forfeited any argument based on the voluntary-cessation\nexception to mootness. Ante at 8 n.4.\n\n 4\nCir. 2009). But the plaintiff must establish both that he “has\nstanding to bring such a forward-looking challenge” and that\n“the [challenge] is ripe.” City of Houston v. HUD, 24 F.3d\n1421, 1429 (D.C. Cir. 1994). Standing requires an injury that\nis “concrete, particularized, and actual or imminent,” among\nother things. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409\n(2013) (quotation marks omitted). Ripeness requires both an\nimpending injury and an issue that is presently fit for judicial\nresolution. See Texas v. United States, 523 U.S. 296, 300–01\n(1998). Without pleading and proving that an ongoing policy\nexists, the plaintiff cannot satisfy these basic requirements, and\nthe prospective challenge likewise would fail on the merits.\n\n Standing and ripeness must be “supported in the same way\nas any other matter on which the plaintiff bears the burden of\nproof, i.e., with the manner and degree of evidence required at\nthe successive stages of the litigation.” Lujan v. Defenders of\nWildlife, 504 U.S. 555, 561 (1992). Thus, on a motion to\ndismiss, the plaintiff must allege well-pleaded facts that\nsupport a plausible inference of standing and ripeness. See\nAshcroft v. Iqbal, 556 U.S. 662, 677–84 (2009); Bell Atl. Corp.\nv. Twombly, 550 U.S. 544, 555–63 (2007). Confirming this\npoint, we have held that the pleading requirements of Twombly\nand Iqbal apply to questions of standing. See, e.g., Hancock v.\nUrban Outfitters, Inc., 830 F.3d 511, 513 (D.C. Cir. 2016) (at\nthe pleading stage, a plaintiff must “‘state[ ] a plausible claim’\nthat each element of standing is satisfied” (quoting Iqbal, 556\nU.S. at 678–79)). Likewise, on summary judgment, the\nplaintiff must adduce sufficient evidence from which the trier\nof fact could reasonably find standing and ripeness. See, e.g.,\nAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–52 (1986).\n\n Two aspects of Twombly and Iqbal are important here.\nFirst, courts do not accept as true a complaint’s legal\nconclusions, “mere conclusory statements,” or “[t]hreadbare\n\n 5\nrecitals of the elements” of a claim. Iqbal, 566 U.S. at 678.\nIncluded in these categories are naked assertions of unlawful\nmotive, see id. at 680–82, or agreement, see Twombly, 550 U.S.\nat 551. Second, any specific factual allegations falling outside\nthese categories must establish a “plausible” claim—\nsomething “more than a sheer possibility that a defendant has\nacted unlawfully.” Iqbal, 556 U.S. at 678. For example,\n“parallel conduct does not suggest conspiracy” in antitrust\ncases, for it is fully consistent with independent action in\ncompetitive markets. Twombly, 550 U.S. at 557, 566–70.\nLikewise, the fact that “thousands of Arab Muslim men” were\ndetained after the September 11 attacks was “no surprise”\ngiven the identities of the attackers, and thus did not support a\nplausible inference of unconstitutional discrimination. Iqbal,\n556 U.S. at 681–82. In both instances, the allegations failed to\nnegate an “obvious alternative explanation” besides unlawful\nconduct. Id. at 682 (quoting Twombly, 550 U.S. at 567).\n\n 2\n\n Under these standards, Reid failed to plausibly allege any\nunlawful BOP policies. To begin, it is not enough merely to\nassert that unlawful policies exist, just as it was not enough\nmerely to assert the existence of a conspiracy in Twombly or an\nillicit motive in Iqbal. Rather, the bare allegation of an\nunlawful policy is a legal conclusion or conclusory statement.\nSee, e.g., AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631,\n637 (9th Cir. 2012); McCauley v. City of Chicago, 671 F.3d\n611, 616–17 (7th Cir. 2011). Even two decades before\nTwombly, this Court made clear that “more than a nebulous\nassertion of the existence of a ‘policy’ is required to establish\nstanding.” Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir.\n1987). Thus, the allegation that Reid was denied magazines\nand exercise “per BOP policy,” J.A. 7–8, is plainly insufficient.\nAnd the statement that Reid was denied prompt access to\n\n 6\nadministrative forms “[o]n many occasions,” J.A. 9, is even\nless substantial, as it fails to allege a policy even in conclusory\nterms.\n\n The complaint further alleges that prison officials\n“invariably informed” Reid that they were following BOP\npolicies in denying him magazines and exercise. J.A. 7–8. Yet\nReid says nothing more about who said so, when, where, how\noften, and under what circumstances. This too falls short, for\nTwombly and Iqbal require enough “specific facts” to “present\na story that holds together.” McCauley, 671 F.3d at 616\n(quotation marks omitted). These vague references to hearsay\nstatements tell no such story. If pleading “there is a policy” is\nnot enough, then neither is pleading “I was invariably informed\nthat there is a policy,” which is all Reid has done here.\n\n Nor do Reid’s allegations about specific incidents support\nany plausible inference of a policy. As for magazines, the\ncomplaint alleges only that, at eight facilities, “prison officials\nrefused to deliver magazines sent from the publisher to\nPetitioner.” J.A. 7. Entirely unstated are the involved officials;\nthe names, number, or types of the magazines; and the\nfrequency or surrounding circumstances of any refusal to\ndeliver. As for exercise, Reid alleges only denials for\ninfractions “such as having a string hanging from the shower,\na piece of paper in the window, not having his bed made to the\nsatisfaction of the prison guard, or any other matter of cell\ndecorum, whether real or imagined.” J.A. 8. On its face, this\nsuggests not a nationwide policy, but individual decisions\nbased on the facts and circumstances surrounding different\nprisoners in different prisons at different times.\n\n The relevant BOP regulations further undercut any\ninference of an illicit nationwide policy. They permit inmates\nto “receive softcover publications” such as magazines, 28\n\n 7\nC.F.R. § 540.71(a)(1), but this privilege is limited in several\nrespects. For one, a warden may reject publications deemed\n“detrimental to the security, good order, or discipline” of the\nprison, as well as publications that “might facilitate criminal\nactivity.” Id. § 540.71(b). A warden also “may set limits\nlocally (for fire, sanitation or housekeeping reasons) on the\nnumber or volume of publications an inmate may receive or\nretain in his quarters.” Id. § 540.71(f). Finally, a warden may\nrestrict an inmate’s incoming correspondence “based on\nmisconduct or as a matter of classification.” Id. § 540.15(a).\nThe regulations further provide that a SHU inmate may receive\nfive hours of outdoor exercise per week, id. § 541.31(g), and a\nBOP policy document states that “[r]estriction or denial of\nexercise is not used as punishment,” BOP Program Statement\n5270.11, at 12 (Nov. 23, 2016). But this privilege is also\nsignificantly limited, as the regulation further states that\nexercise may be denied “if it is determined that [the inmate’s]\nuse of exercise privileges threatens safety, security, and orderly\noperation of a correctional facility, or public safety.” 28 C.F.R.\n§ 541.31(g). Reid does not challenge any of these limitations.\n\n Given the narrow, qualified nature of these regulatory\nprivileges, a large number of deprivations does not plausibly\nsuggest illegal nationwide policies. Any such inference would\nignore an obvious alternative explanation—that the\ndeprivations resulted from individual applications of the\nregulations to the circumstances of different prisoners in\ndifferent prisons at different times. The regulations themselves\nrequire such contextual judgments, and Reid’s allegations\nprovide no basis to suspect anything more sinister.\n\n 3\n\n Reid’s thin allegations of amorphous policies also fail to\nestablish ripeness. In Worth v. Jackson, 451 F.3d 854 (D.C.\n\n 8\nCir. 2006), we held unripe a prospective challenge to an alleged\ninformal policy of using race and sex preferences in hiring. As\nwe explained, “we cannot assess a facial challenge to an\nunwritten policy that by definition has no face.” Id. at 862. We\nconcluded that, absent “concrete application” of the policy, we\ncould not “ascertain its contours.” Id. In City of Houston, we\nlikewise held unripe a prospective challenge to an alleged\ninformal policy to deny hearings in vaguely specified\ncategories of cases. 24 F.3d at 1431 (“There is simply no way\nfor this court to consider whether HUD can act without a\nhearing in some amorphous category of ‘cases such as this\none,’ because the actual contours of the cases within the\ncategory are potentially determinative of their outcome.”).\nHere, Reid’s complaint similarly alleges an unwritten policy\nthat is uncertain in its scope and application.\n\n On this point, the amicus invokes Payne Enterprises v.\nUnited States, 837 F.2d 486 (D.C. Cir. 1988), which\nadjudicated a prospective challenge to an Air Force policy of\nrefusing to release bid abstracts for certain contracts. Id. at 488.\nBut the policy there was written, its scope was undisputed, and\nits application in future cases did not depend on presently\nunknown facts. See id. at 491. None of that is true here.\n\n 4\n\n The evidentiary submissions undercut Reid’s policy claim\neven further. Both parties moved for summary judgment and,\nin so doing, introduced documents and affidavits detailing\nReid’s various disputes with BOP. Reid opposed the\ngovernment’s motion on the merits but did not argue that it was\npremature. Thus, pleadings aside, we could readily reject the\nalleged illegal policy on summary judgment.\n\n The evidentiary materials confirm that Reid’s past disputes\nwith BOP have been localized and fact-intensive. To pick a\n\n 9\nfew examples: Documents indicate that in September 2013,\nofficials at the Jonesville, Virginia prison withheld magazines\nfrom Reid because of security concerns about “inmates\ncontinuously covering their cell windows and light fixtures,\nwhich causes poor visibility into cells and interferes with staff\nduties.” Reid v. Samuels, No. 15-CV-375 (D.D.C.), ECF Doc.\n23, at 66. In January 2013, officials at the Atwater, California\nprison made a different, safety-related judgment—to withhold\nmagazines from Reid because of concerns about sanitation and\nfire hazards. See id. at 18. By contrast, an official at the\nTucson, Arizona prison where Reid was held from November\n2013 to July 2015 testified that inmates there were “not denied\naccess to their mail,” and Reid had neither bought nor been sent\nany magazines. J.A. 49. The disputes about exercise were\nsimilarly varied: Atwater officials revoked Reid’s privileges\nafter he obstructed the light fixture in his cell. Reid, No. 15-\nCV-375, ECF Doc. 23, at 32. According to Reid, officials at\nother prisons did the same after he put “paper on the wall, light,\nsink, etc.” J.A. 68. A Tucson official testified that Reid was\nnot denied exercise but voluntarily refused it. J.A. 50.\n\n To be sure, Reid disputes much of this evidence. For\nexample, he argues that magazines should not have been\n“singled out” for removal in Jonesville because other objects\ncould have been used to cover lights and windows. Reid, No.\n15-CV-375, ECF Doc. 23, at 68. He claims that, while in\nTucson, he was given a free subscription to “Z Magazine” and\nnever refused exercise. J.A. 69–70. He contends that a\ncellmate obstructed the light in Atwater. Reid, No. 15-CV-375,\nECF Doc. 23, at 34. Whatever the merits of these disputes,\nthey turn on particular facts involving individual prisons and\nprisoners. Neither the disputes themselves, nor any other\nrecord evidence, suggest illegal nationwide policies.\n\n 10\n B\n\n Without any policy that could unify Reid’s various\nindividual disputes with BOP, this action cannot fit within the\nmootness exception for cases that are capable of repetition yet\nevading review. Under that doctrine, there must be a\nreasonable expectation that the same “legal controversy”\nbetween the same parties will reoccur. See, e.g., Del Monte,\n570 F.3d at 322–24. Only then can the doctrine be squared\nwith “the Constitution’s requirement, set forth in Article III,\nthat courts resolve only continuing controversies between the\nparties.” People for the Ethical Treatment of Animals v.\nGittens, 396 F.3d 416, 422 (D.C. Cir. 2005) (PETA).\n\n Our decisions confirm that, to be capable of repetition, a\nlegal controversy must be fixed, knowable in advance, and thus\npredictably repeatable. For example, in Del Monte, we held\nthat a dispute whether certain statutory deadlines were\nmandatory was capable of repetition. 570 F.3d at 324–35.\nLikewise, in Christian Knights of the Ku Klux Klan v. District\nof Columbia, 972 F.2d 365 (D.C. Cir. 1992), we held capable\nof repetition a dispute whether a permit to march along the\nNational Mall could be restricted because of threatened\naudience violence. Id. at 371. By contrast, in PETA, we held\nthat a past controversy, which arose from the exclusion of a\nsculpture from an exhibit, was too “fact-specific” to be capable\nof repetition. 396 F.3d at 424. The plaintiff alleged\nimpermissible content discrimination in how the formal\nselection criteria had been applied in practice. See id. at 423.\nAfter summarizing the various factual disputes embedded in\nthe controversy, we stated: “To conclude that a dispute like\nthis would arise in the future requires us to imagine a sequence\nof coincidences too long to credit.” Id. at 424.\n\n 11\n PETA governs this case. Setting aside the deficient policy\nallegations, Reid does not challenge anything that could give\nrise to a discrete, predictably repeatable legal controversy. As\nexplained above, he claims that BOP has violated regulations\nthat require case-by-case inquiries into prison safety, security,\norder, discipline, sanitation, and housekeeping. Not\nsurprisingly, the application of those regulations has spawned\ndistinct, fact-intensive controversies. For example, the\nJonesville dispute about the use of magazines as window\ncovers is different from the Atwater dispute about sanitation\nand fire hazards, and both of those are different from the\nTucson dispute about what magazines were mailed to Reid.\nLikewise, the Tucson dispute about whether Reid refused\nexercise is different from the Atwater dispute about which\ninmate obstructed the lights, and both of those are different\nfrom other disputes about whether Reid adequately maintained\nhis cell. Because no discrete, identifiable legal controversy is\ncapable of repetition, the mootness exception does not apply.\n\n C\n\n My colleagues reverse on narrow grounds, so my\ndisagreement with them is also narrow. They reserve the\nquestion whether Reid has adequately pleaded a policy under\nthe plausibility standard articulated in Twombly and Iqbal.\nAnte at 11. Likewise, they reserve the question whether Reid’s\npolicy allegations could survive a motion for summary\njudgment. Ante at 12. I would have decided those questions,\nbut they remain open on remand.\n\n The disagreement about how to apply the mootness\nexception for cases that are capable of repetition yet evading\nreview is also narrow. My colleagues do not dispute two\ncritical points: the legal controversy itself must be predictably\nrepeatable, and Reid’s claim to satisfy this requirement\n\n 12\ndepends on his policy allegations. My colleagues invite the\ndistrict court on remand to probe the facts relevant to\nmootness—including the policy allegations—either on a\nmotion to dismiss or on summary judgment. Ante at 11–12.\nSo, the mootness question also remains open.\n\n Ultimately, my colleagues and I disagree over how to\napply the mootness exception in the current procedural posture\nof this case, which they describe as one involving a “motion to\ndismiss the Complaint at the pleadings stage.” Ante at 8. My\ncolleagues recognize that the party opposing mootness bears\nthe burden of proving that the exception applies. Ante at 7. But\nthey note that a complaint, which is filed before the alleged\nmooting event, obviously cannot plead a mootness exception.\nAnte at 8. So, they conclude, we should consider only whether\nthere is any “logical deficiency” in the plaintiff’s argument for\nsatisfying the exception. Ante at 9–11. They derive this\nforgiving standard from a statement in Haase that “[a]ssuming\nthe theory presented in the complaint is not itself inherently\nflawed, the standing inquiry is ordinarily now complete.” 835\nF.2d at 907; see ante at 7.\n\n This analysis seems to me mistaken. For one thing, Haase\nwas a case about initial standing, so it has nothing to say about\nhow courts should assess intervening facts bearing on\nmootness. Its inquiry whether the plaintiff’s theory is\n“inherently flawed” reflects not a distinction between standing\nand mootness, but a general premise that motions to dismiss do\nnot test for pleading sufficiency. That premise was correct\nwhen Haase was decided in 1987, see Conley v. Gibson, 355\nU.S. 41 (1957), but it did not survive Twombly and Iqbal.\n\n In this case, the complaint alleges illicit policies that pre-\ndate the mooting event of Reid’s prison transfer, so there is\nnothing unfair about assessing whether those allegations were\n\n 13\nplausibly pleaded. And, if intervening factual developments\nhad strengthened Reid’s case, he could have sought leave to\namend the complaint, which he did not. Finally, the record\nincludes not only the government’s motion to dismiss, but also\nthe parties’ cross-motions for summary judgment, which\namply develop the facts relevant to mootness. As noted above,\nReid has never claimed that the government’s motion was\npremature. So, I can see no reason to apply only a minimal\nscreen for “logical deficiency” at this juncture, thereby\nartificially prolonging the life of this moot case.\n\n Because nothing prevents us from resolving the question\nof mootness now, I would affirm the district court’s order\ndismissing this case as moot.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365655/", "author_raw": "KATSAS, Circuit Judge, dissenting"}]}	GRIFFITH	WILKINS	KATSAS	1	{}	4	2	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/4588402/	Published	1	1	0	0	1	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,059	MANDAN, HIDATSA AND ARIKARA NATION v. The UNITED STATES DEPARTMENT OF THE INTERIOR Ryan Zinke, in His Official Capacity as Secretary of the United States Department of the Interior, Slawson Exploration Company, Inc., Intervenor-Defendant.	Mandan, Hidatsa & Arikara v. U.S. Dept., Interior	2019-02-05	Case No. 18-cv-1462 (CRC)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251979/"}]}				0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334059/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,647	HEART 6 RANCH, LLC v. David BERNHARDT	Heart 6 Ranch, LLC v. Bernhardt	2019-02-05	Civil Action No. 17-2711 (CKK)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Kollar, Kotelly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252567/", "author_raw": ""}]}	KOLLAR	KOLLAR	KOTELLY	1	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334647/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,333,784	United States v. Donzell Lorenzo DIXON	United States v. Dixon	2019-02-08	Case No. 1:18-cr-00358 (TNM)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251704/", "author_raw": ""}]}	MCFADDEN	MCFADDEN		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7333784/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,333,869	ELECTRONIC PRIVACY INFORMATION CENTER v. U.S. DEPARTMENT OF COMMERCE	Elec. Privacy Info. Ctr. v. U.S. Dep't of Commerce	2019-02-08	No. 18-cv-2711 (DLF)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Friedrich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251789/", "author_raw": ""}]}	FRIEDRICH	FRIEDRICH		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7333869/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
7,334,158	Saundra M. MCNAIR v. DISTRICT OF COLUMBIA	McNair v. Dist. of Columbia	2019-02-08	Case No. 15-cv-00729 (APM)	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Mehta", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252078/", "author_raw": ""}]}	MEHTA	MEHTA		0	{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/7334158/	Published	0	1	0	0	0	2,019	2	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...

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